UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 

Faculty  Library 


REPORTS  OF  CASES 


ARGUED    AND    DETERMINED 


SUPREME      COURT 


AND    IN   THE 


COURT  FOR  THE  CORRECTION  OF  ERRORS 


o?  -nut 


STATE    OF    NEW-YORK. 


BY  NICHOLAS  HILL,  JUN. 

Counsellor  at  Law. 


VOt.    IT. 


ALBANY: 
WM.     *     A.      OOULD     &     Co.,      104     STATE-STREET. 

NEW-YORK: 

OOULD,    BANKS    &    Co.,    144    NASSAU- STREET. 
Stereotyped  and  printed  by  G.  M.  Davison  &  Co.,  Saratoga  Springs. 

1843. 


Entered  according  to  Act  of  Congress  in  the  year  one  thousand  eight  hundred  and  forty- 
three,  by  WM.  &  A.  GOULD  &  Co.  in  trie  cleik  s  uui^e  of  the  district  court  of  the  northern 
district  of  New-York. 


MEMBERS  OF  THE  COCBT 


FOR   THE 


n  ©  sy  (0  IF  IB 

IN  THE  YEAR  1812. 


LUTHER  BRADISH,  President  of  the  Senate. 
REUBEN  H.  WAL WORTH,  Chancellor. 

SAMUEL  NELSON,  Ch.  J. 
GREENE  C.  BRONSON, 
ESEK  COWEN, 


of  the 
Supreme  Court. 


Senators. 


GABRIEL  FURMAN, 
MORRIS  FRANKLIN, 


FUST    DISTRICT. 


JOHN  B.  SCOTT, 
ISAAC  L.  VARIAN. 


DANIEL  JOHNSON, 
JOHN  HUNTER 


SECOND    DISTRICT. 


ROBERT  DENNISTON, 
ABRAHAM  BOCKEE. 


ALONZO  C.  PAIGE, 
&RASTUS  ROOT, 


THIRD    DISTRICT. 


HENRY  W.  STRONG, 
ERASTUS  CORNING. 


BETHUEL  PECK, 
JAMES  G.  HOPKINS, 


FOURTH    DISTRICT. 


JOHN  W.  TAYLOR, 
EDMUND  VARNEY. 


JOSEPH  CLARK, 
MJMNER  ELY, 


FIFTH    DISTRICT. 


HENRY  A.  FOSTER, 
WILLIAM  RUGER. 


StXTH    DISTRICT. 


ALVAH  HUNT, 
ANDREW  B.  DICKINSON, 


NEHEMIAH  PLATT, 
JAMES  FAULKNER. 


SEVENTH    DISTRICT. 


ROBERT  C.  NICHOLAS, 
LYMAN  SHERWOOD, 


ELIJAH  RHOADES, 
WILLIAM  BARTLIT. 


EIGHTH    DISTRICT. 


HENRY  HAWKINS, 
ABRAM  DIXON, 


fS| 


SAMUEL  WORKS, 
GIDEON  HARD. 


JUSTICES  OF  THE  SUPREME  COURT, 


SAMUEL  NELSON,  Chief  Justice. 

GREENE  C.  BRONSON,  )  r    . . 
ESEK  COWEN,  j  Justzces- 


CIRCUIT  JUDGES. 


FIRST   CIRCUIT, 

WILLIAM  KENT. 

gECOND   CIRCUIT, 

CHARLES  II.  RUGGLES. 

THIRD   CIRCUIT, 

JOHN  P.  CUSHMAN. 

FOURTH    CIRCUIT, 

JOHN  WILLARD. 


FIFTH  tJlRCUTT, 

PHILO  GRIDLEY. 

SIXTH   CIRCUIT, 

ROBERT  MONELL. 

SEVENTH  CIRCUIT, 

DANIEL  MOSELEY. 

EIGHTH   CIRCUIT, 

NATHAN  DAYTON. 


GEORGE  P.  BARKER,  Attorney  General. 
[4] 


CASES 


REPORTED  IN  THIS  VOLUME. 


Acker  v.  Witherell, .. TI2 

Adsitv.  Brady, .. 630 

Aiken,  Lannon  v 591 

Aikin,  People  v. .. 606 

Allen,  Briggsv 538 

Alston  T.  Mechanics'  Mutual  Ins. 

Co.  of  Troy, i 329 

Amidon,  Hunt  T 345 

Anderson,  Rapelye  v ~ 472 

Anonymous, 20 

, 56 

, 597 

603 

Artcher,  Hanford  v 271 

Austin  v.  Vandermark, 259 


Bank  of  the  State  of  New. York, 
Commercial  Bank  of  Buffalo  v. .  516 

Bank  of  Utica  v.  Root, 535 

Barber,  Kctchum  v 224 

,  v.  The  West  Stockbridge 

R.R.Co 547 

Becker,  Ex  partc, 613 

Benham,  Sheldon  v 129 

Berthclon  v.  Betts, 577 

JJrtts,  Bcrthelon  v ! 577 

Bigelow  v.  Grannis, 206 

Bingham,  Ehlo  v 595 

Birdseyp  v.  Ray, 158 

Bishop  v.  Bishop, 138 

Blauvclt,  Williams  v 27 

Bojrertv.  Hertell, 492- 

Bond,  Wallace  v 536 

Borst,  Herrick  v 650 

Boyd  v.Townsend, 183 

Brady,  Adsitv 630 

Breasted  v.  The  Farmers'  Loan  and 

Trust  Co 73 

Briggsv.  Allen, 538 

Brittan  v.  Peabody, .. 61 

16' 


Brown  v.  Stebbins, _ 154 

Bulger,  Webb  v _ 588 

Burns,  Kempshall  v 468 

Bush,  People  v 133 

Bywatcr,  Hughes  T 551 


Calkins,  Mecch  v 534 

Camp  v.  The  Lumberman's  Bank,.    39 

Gary  v.  Gruman, 625 

Case,  Van  Hovenburgh  v 541 

Chase,  Fame  v 563 

Child  v.  Starr, 369 

Clark,  NeUis  v 424 

Colev.  M'Clellan, 59 

Commercial   Bank    of   Bnftalo  v. 
Bank  of  the  State  of  New-York,  516 

Coster,  Cowles  v 550 

Cowing,  Kelleyv 266 

Cowles  v.  Coster, 550 

Grain,  Finehout  v 537 

Crowner,  Wood  v 548 

Culver  v.  Green, 570 

Curtis  v.  Hubbard, 487 


Dakin,  Matterof, 42 

Davis,  Greenvault  v 643 

Dawsonv.  Kittle, 107 

Dockstader  v.  Sammons, 546 


Ehle  v.  Bingham, 595 

Everest,  People  v 71 

Exparte  Becker, 613 

Fleming, 581 

Green, 558 

Kctchum, 564 

Newell .. 589,608 

Paddock. 544 


n 


CASES  REPORTED. 


Ex  parte  Reed, 572 

Wood, 542 


Fanners'    Loan    and    Trust    Co., 

Breasted  v 73 

Faulkner,  Matter  of. 30,  598 

Fenton  v.  The  People, 126 

Finehout  v.  Grain, 537 

Fleming,  Ex  parte, 581 

Forman  v.  Stebbins, 181 

Fountain,  Reynolds  v 52 

Fuller  v.  Van  Geesen 171 

G 

Gale  v.  Mead, 109 

Gardner,  Keneda  v 469 

Gilbert,  Johnson  v 178 

Goodyear  v.  Ogden, 104 

Gould  v.  Root, 554 

Grannis,  Bigelow  v 206 

Graves  v.  Woodbury, 559 

Green,  Culver  v 570 

,  Ex  parte, 558 

Greenvault  v.  Davis, 643 

Griswold,  Jackson  v 522 

Gruman,  Cary  v 625 


Hanford  v.  Artcher, 271 

Hazard,  People  v 107 

Henry,  Wright  v 205 

Herkimer    Co.    Mutual    Ins.   Co., 

Al.-iim  v 187 

Herrick  v.  Bors-t, 650 

Hcrtell,  Bofrert  v 492 

Iloyt,  Miner  v 193 

Hubbard,  Curtis  v 487 

,  Townsend  v 351 

Hughes  v.  Bywater, 551 

Hunt  v.  Araidon, 345 


Ingraham,  Sharp  v 116 

Ittick  v.  Whitney, 54 


Jackson  v.  Griswold, 522 

Johnson  v.  Gilbert, 178 

,  Sharp  v 92 

,  Wilkinson  v 4g 

•  v.  Williams, 34 


Koocn,  Williams  v „ 168 


Kelley  v.  Cowing, 266 

v.  The  Mayor  &c.  of  Brook- 
lyn,    263 

Kempshall  v.  Burns, 468 

Keneda  v.  Gardner, 469 

Ketchum,  v.  Barber, 224 

Exparte, 564 


Kittle,  Dawson  v 107 


Larmon  v.  Aiken, 591 

Lee,  Mills  v 549 

v.  Tillotson, 27 

Lewis,  Munsell  v 635 

Lumberman's  Bank,  Camp  v 39 

Luqueer,  Prosser  v 420 

n 

Mann,  Porterv 540 

v.  The  Herkimer  Co.  Mu- 


tual Ins.  Co 187 

Matter  of  Dakin, 42 

Faulkner, 30,  598 

Whitney, 533 


Mayor  &c.  of  Brooklyn,  Kelley,  v.  263 
of  New-York  v.  Nichols,  209 


M'Cagg,  Miller  v 35 

M'Clellan,  Cole  v 59 

Mead,  Gale  v 109 

Mechanics'  Mutual  Ins.  Co.  of  Troy, 

Alston  v 329 

Meech  v.  Calkins, 534 

Millard  v.  Robinson, 604 

.Stanley  v 50 

Miller  v.  M'Cagg, 35 

Mills  v.  Lee, 549 

Miln  v.  Spinola, 177 

Miner  v.  Hoyt, 193 

Mitchell  v.  Williams, 13 

Moore,  Park  v 592 

Munsell  v.  Lewis, 035 


If 


Nellis  v.  Clark, 424 

Nelson  v.  Sharp, 584 

Newell,  Exparte, 589,  608 

Nichols,  Mayor  &c.  of  New-York  v.  209 


Ogden,  Goodyear  v „ 104 


Paddock,  Exparte, 544 

Paine  v.  Chase  553 

Park  v.Moore, 592 

Patchen  v.  Wilson,. . . ." .........'.     57 

Peabody,  Brittan  v '„      ',     61 


CASES  REPORTED. 


vn 


People  v.  Aikin, .. 606 

v.  Bosh, 133 

v.  Everest, : 71 

,  Fenton  v 126 

v.  Hazard, 207 

,  Purdyv 384 

v.  Sly, 593 

v.  Supervisors  of  Niagara,.     20 

v.WilHams, 9 

Porter,  v.  Mann, 540 

Taylor  v „ 140 

Potter,  Shepardv 202 

Prince,  Rapelye  v 119 

Prosser  v.  Luqueer, 420 

Purdy  v.  The  People, 384 


Ranney,  Taylor  v 619 

Rapelye  v.  Anderson, 472 

v.  Prince, 119 

Ray,  Birdseye  v - 158 

Reed,  Ex  parte, 572 

Reynold*  v.  Fountain, 52 

Robinson,  Millard  v 604 

Rockwell  v.  Rockwell, 164 

Rogers,  Vermilyea  v - 567 

Root  v. , 38 

Root,  Bank  of  Utica  v 535 

,  Gould  v 554 

Ryeras,  Wheeler  v 466 


Safford  v.  Wyckoff, .. 442 

gammons,  Dockstaderv 546 

Seymour  v.  Strong, 255 

Sharp  v.  Ingraham, 116 

—— v.  Johnson, 92 

,  Nelson  v 584 

« v.  Speir, 76 

Trowbridgev „ 38 

Sheldon  v.  Benham, 129 

Shepard  v.  Potter,.. 202 

Sly,  People  v 593 

Smith,  White  v 166 

Speir,  Sharp  v 76 

Spinola,  Miln  v 177 

Stanley  v.  Millard, 50 

Starr,  Child  v 369 


Stebbins,  Brown  v  .....  ..  ............  154 

-,  Fonnan  v  ...................   181 


Stimson,  Supervisor  of  Galway  v...  136 
Strong,  Seymour  v  .....................  255 

Supervisor  of  Galway  v.  Stimnon,  .  13rt 
Supervisors  of  Niagara,  People  v..  .  aO 
Suydam  v.  Westfall,  .................  211 


Taylor  v.  Porter, 140 

v.  Ranney, til'J 

Thompson,  Walrath  v 2W 

Tillotson,  Lee  v 27 

Townsend,  Boyd  v~ H3 

v.Hubbard, 351 


Trowbridge  v.  Sharp, 3tf 


Vandcrmark,  Austin  v 259 

Van  Geesen,  Fuller  v 171 

Van  Hovenburgh  v.  Case, 54 1 

Vermilyea  v.  Rogers, 567 

W 

Wallace  v.  Bond, 536 

Walrath  v.Thompson, 200 

Webb  v.  Bulger, 58« 

Westfall,  Suydam  v 2'1 

West  Stockbridge  R.  R.  Co.,  Bar- 
ber v 547 

Wheeler  v.  Ryeras, 46G 

White  v.  Smith, 166 

Whitney,  Ittick  v 54 

.Matter  of, 533 

Wilkinson  v.  Johnson, 46 

Williams  v.  Blauvelt, 27 

,  Johnson  v _ 34 

v.Keech, 168 

,  Mitchell  v 13 

,  People  v 9 

Wilson,  Patchenv 57 

Witherell,  Acker  v 112 

Wood,  Ex  parte, 542 

Wood  v.  Crowner, 548 

Woodbnry,  Graves  v 559 

Wrightv. Henry,... M 205 

Wyckoff,  Safford  Y. 442 


CASES 

ARGUED  AND  DETERMINED 


IN     THE 


S  ^  IP  IB  ES  ££  IE    (D  CD  TET  Hi  It 

OF   THE 

STATE  OF  NEW-YORK, 

IN  OCTOBER  TERM,  1842. 


[Continued  from  Volume  Three.] 


THE  PEOPLE  vs.  WILLIAMS. 

A  representation,  though  false,  is  not  within  the  statute  against  obtaining  property 
&.c.  by  false  pretences.  Unless  calculated  to  mislead  persons  of  ordinary  prudence 
and  caution. 

Accordingly,  where  an  indictment  charged  the  defendant  with  obtaining  V.'s  gig. 
nature  to  a  deed  of  lands,  by  falsely  pretending  that  G.,  who  held  a  bond  and 
mortgage  against  V.,  was  about  to  sue  him  on  the  bond,  foreclose  the  mortgage 
&c.,  and  that  G.  had  so  told  the  defendant :  Held,  that  the  pretences  set  forth 
wore  not  sufficient  to  warrant  a  conviction. 

CERTIORARI  to  the  Erie  general  sessions,  where  Williams 
was  convicted  of  obtaining  the  signature  of  one  Van  Guilder  to 
a  deed  of  lands,  by  false  pretences.  The  case  turned  mainly 
upon  the  sufficiency  of  the  indictment,  which  charged  the  fol- 
lowing facts,  viz  :  That  Williams,  heretofore  &c.,  at  &c.,  did 
falsely  pretend  to  Van  Guilder  that  one  Gray  was  about  to  sue 
him,  the  said  Van  Guilder,  on,  a  bond  which  he,  the  said  Gray, 
then  held  and  owned  against  Van  Guilder,  and  that  the  said 
Gray  was  also  about  to  foreclose  a  certain  mortgage  which  he 

VOL.  IV.  2  m 


10  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Williams. 

then  held  and  owned,  and  which  was  a  lien  upon  a  farm  of  Van 
Guilder,  situate  &c.,  and  that  he,  the  said  Gray,  would  take  said 
farm  by  such  foreclosure  away,  and  deprive  the  said  Van  Guil- 
de;  of  the.  same  ;  and  further,  that  the  said  Gray  had  told  him, 
the  said  Williams,  that  he  was  going  to  sue  him,  the  said  Van 
Guilder,  upon  said  bond,  and  was  going  to  foreclose  the  said 
mortgage  :  By  means  of  which  said  false  pretences  the  said 
Williams  did  then  and  there  unlawfully  obtain  the  signature  of 
said  Van  Guilder  to  a  certain  written  instrument,  commonly 
called  a  warranty  deed,  which  said  instrument  bore  date  &c., 
and  purported  to  convey  to  said  Williams  all  that  piece  or  par- 
cel of  land  known  £c.,  [describing  it,]  being  the  premises  upon 
which  the  said  Van  Guilder  then  resided;  wi>h  intent  then 
and  there  to  cheat  and  defraud  him  the  said  Van  Guilder. 
Whereas  in  truth  &c.  said  Gray  was  not  about  to  sue  said  Van 
Guilder  on  the  bond  &c.,  and  was  not  about  to  foreclose  the 
said  mortgage  &c. ;  and  whereas  in  truth  &c.  the  said  Gray  had 
not  told  the  said  Williams  that  he  was  going  to  sue  him,  the 
said  Van  Guilder,  upon  said  bond,  or  foreclose  the  said  mort- 
gage &c. 

At  the  trial,  evidence  was  given  of  the  facts  alleged  in  the 
indictment ;  and  the  defendant's  counsel  requested  the  court  to 
charge  that  the  pretences  laid  were  not  such  as  could  be  made 
the  subject  of  a  criminal  prosecution  under  2  R.  S.  677,  §  53. 
The  court  refused  so  to  charge,  and  held  the  contrary,  to 
which  the  defendant's  counsel  excepted.  The  jury  found  the 
defendant  guilty  ;  whereupon  judgment  was  suspended  and  the 
proceedings  brought  here  by  certiorari,  pursuant  to  2  R.  S. 
736,  §  27. 

E.  Cook  $  D.  Tillinghast,  for  the  defendant,  contended  that, 
to  bring  a  case  within  the  statute,  the  false  pretences  must  oe 
such  as  may  mislead  men  of  ordinary  prudence  and  caution 
while  engaged  in  the  lawful  pursuits  of  business.  (2  R.  S. 
677,  $  53  ;  The  People  v.  Haynes,  11  Wend.  566,  per  Nelson, 
J.;  Young  v.  The  King,  3  T  R.  102,  per  Kenyan,  Ch.  /.) 


ROCHESTER,  OCTOBER,  1342.  \\ 

The  People  ».  William* 

The  pretences  alleged  in  the  present  case  are  not  of  thnt 
character.  True,  the  indictment  shows  the  defendant  told 
Van  Guilder  a  falsehood ;  but  that  is  not  enough.  It  was  a 
falsehood  unproductive  of  any  legal  injury — a  mere  moral 
irregularity,  at  most.  Its  direct  tendency  was  to  quicken  Van 
Guilder  in  the  payment  of  a  debt  due  from  him,  (The,  People 
v.  Thomas,  3  /////,  169,)  and,  in  its  own  nature,  it  was  not  calcu- 
lated to  operate  any  other  result.  If  he  was  influenced  by  it 
to  attempt  a  transfer  of  his  property  beyond  the  reach  of  credi- 
tors, the  act  is  the  legitimate  offspring  of  his  own  folly  or 
fraud,  and  not  of  the  falsehood  charged  upon  the  defendant 
The  statute  could  not  have  been  intended  for  such  cases. 

H.  W.  Rogers,  (district  attorney)  contra,  insisted  that  the 
case  was  within  both  the  letter  and  spirit  of  the  statute.  The 
English  statute,  33  Hen.  8,  c.  1,  related  to  frauds  effected  by 
means  of  false  tokens,  and  required  that  these  should  be  such 
as  might  deceive  persons  of  ordinary  prudence.  Though  this 
statute  extended  the  common  law  rule,  it  was  found  to  be  in- 
sufficient j  and  hence  the  enactment  of  30  Geo.  2,  c.  24,  which 
embraced  frauds  effected  by  false  pretences,  as  well  as  tokens. 
The  latter  has  been  considered  as  extending  to  every  case  of 
obtaining  goods  &c.  by  false  representations, "  to  which  persons 
of  ordinary  caution  might  give  credit."  (Young  v.  The  King, 
3  T.  R.  102  et  seq.)  Our  statute  of  1813,  (1  R.  L.  410,)  was 
substantially  a  transcript  of  30  Geo.  2,  ch.  24,  and  the  course 
of  decision  under  both  has  been  the  same.  (See  The  People  v. 
Johnson,  12  John.  Rep.  292.)  .The  phraseology  of  the  present 
statute,  (2  R.  S.  677,  §  53,)  is  more  comprehensive  than  that 
of  either  of  the  others  adverted  to.  It  leaves  no  room  for 
speculating  as  to  the  adequacy  of  the  means  employed  to  effect 
the  fraud  ;  but  looks  to  the  fact,  and  embraces  all  "  false  pre- 
tences" by  which  goods  &c.  have  been  actually  obtained.  That 
this  court  have  regarded  it  as  extending  to  a  new  class  of 
cases,  not  provided  for  by  the  law  of  1813,  is  evident  from 
repeated  adjudications ;  (The  People  v.  Stone,  9  Wend.  182 ; 


12  CASES  IN  THE  SUPREME  COURT. 

The  People  r.  Williams. 

The  People  v.  Genung,  11  id.  18  j  7%e  People  v.  Haynes,  id. 
557  ;  The  People  v.  Herrick,  13  id.  87  j  7%e  Peop/c  v.  Ken- 
dall, 25  id.  339  j)  and  if  they  have  not  already  gone  the  entire 
length  of  construing  it  co-extensively  with  the  fraud  actually 
perpetrated  by  the  pretences  used,  they  have  as  yet  established 
no  limit  short  of  that.  The  opinion  of  the  chancellor  in  The  Peo- 
ple v.  Hayni'Sj  (14  Wend.  546,)  fully  maintains  the  doctrine  con- 
tended for  here. 

PER  CUHIAM.  It  is  impossible  to  sustain  this  indictment 
without  extending  the  statute  to  every  false  pretence,  however 
absurd  or  irrational  on  the  face  of  it.  The  charge  is  of  falsely 
representing  to  Van  Guilder  that  he  was  about  being  proceeded 
against  for  a  debt  due  from  him,  and  that,  by  means  of  the  repre- 
sentation, his  signature  was  obtained  to  a  deed  of  lands.  How 
such  a  result  was  made  to  follow  from  means  apparently  so 
inadequate,  we  are  left  to  conjecture.  Looking  to  the  case 
made  by  the  indictment,  Van  Guilder's  only  ground  of  com- 
plaint would  seem  to  be,  that  in  attempting  to  defraud  another 
he  had  himself  been  defrauded.  But  whatever  the  fact  is  in 
this  particular,  there  can  be  no  doubt  that  an  exercise  of  com- 
mon prudence  and  caution  on  his  part  would  have  enabled  him 
to  avoid  being  imposed  upon  by  the  pretences  alleged  ;  and  if 
so,  the  case  is  not  within  the  statute.  (See  GoodhaWs  case, 
Ry.  $  Mood.  Cr.  Cas.  461,  463  ;  Rose.  Cr.  Ev.  362.) 

New  trial  ordered. (o) 


(a)  See  The  People  v.  Thomas,  (3  Hill,  169)  and  the  cases  cited  in  note  (a)  to 
that  case. 


ROCHESTER,  OCTOBER,  1842.  13 


Mitchell  v. 


MITCHELL  vs.  WILLIAMS  &  ROBERTS. 

To  maintain  trover  against  two  joint  bailees,  a  demand  of  and  refusal  by  one  ia  not 
sufficient ;  a  conversion  by  both  must  be  shown. 

In  the  case  of  partners  the  rule  is  different ;  for  each  being  the  general  agent  of  the 
other,  a  refusal  by  one  is  evidence  of  a  conversion  by  both.  Per  COWEN,  J. 

W.  &.  R.  having  hired  of  M.  a  number  of  cows  for  a  year,  the  former  (W.)  took 
possession  of  and  kept  them  on  his  farm,  several  miles  distant  from  R.'s  resi- 
dence. A  few  months  after  the  hiring,  the  cows  were  sold  under  an  execution 
against  W.,  issued  upon  a  void  justice's  judgment  At  the  expiration  of  the 
year,  the  cows  being  still  in  W.'s  possession,  M.  demanded  them  of  him  and  be 
refused  to  deliver  them  up.  A  like  demand  was  made  of  R.  at  his  residence, 
who  said  "  he  would  have  nothing  to  do  with  the  matter,"  and  refused  to  go  and 
see  W.  on  the  subject  Held,  in  trover  against  W.  &.  R.,  that  whether  enough 
had  been  shown  to  prove  a  conversion  by  R.  was  a  question  of  fact  to  be  sub- 
mitted to  the  jury  ;  and  the  circuit  judge  having  directed  them  to  find  a  convcr. 
sion  by  both,  a  new  trial  was  ordered. 

If  R.'s  refusal  to  act  in  the  delivery  of  the  cows  proceeded  from  an  honest  desire 
to  avoid  a  litigation  which  he  supposed  might  arise  out  of  the  sale  under  the  void 
judgment,  he  was  not  guilty  of  a  conversion.  Per  COWEN,  J. 

Otherwise,  if  his  refusal  to  act  proceeded  from  a  design  to  countenance  or  aid  W. 
in  unlawfully  withholding  the  cows  from  M.,  or  to  embarrass  the  latter  in  his  en- 
deavor to  obtain  possession.  Per  COWEN,  J. 

In  general,  the  property  being  present,  or  under  the  undisputed  control  of  the  party 
of  whom  it  is  demanded,  his  mere  neglect  to  deliver,  without  saying  a  word,  or  a 
refusal  on  his  part  to  point  out  the  property  and  act  in  the  delivery,  will  be 
prima  facie  evidence  of  a  conversion.  Per  COWEN,  J. 

Where  there  is  proof  of  a  positive  and  unexcuscd  refusal  to  deliver  on  demand 
made,  the  judge  may  advise  the  jury,  as  matter  of  law,  to  find  a  conversion. 
Per  COWEN,  J. 

TROVER  for  six  cows,  tried  at  the  Oneida  circuit,  in  April, 
1842,  before  GRIDLEY,  C.  Judge.  The  case  was  this:  On  a 
settlement  of  accounts  between  the  plaintiff  and  the  defendant 
Williams,  in  April,  1840,  a  balance  was  found  due  from  the 
latter,  who  thereupon  "  turned  out"  the  cows  in  question  to 
apply  on  the  account.  Roberts,  the  other  defendant,  was 
present  and  acted  as  interpreter  for  Williams,  his  brother-in- 
law,  who  is  a  Welchman.  After  the  cows  were  so  turned  out, 
the  plaintiff  hired  them  to  the  defendants  for  one  year  at  $2,50 


14  CASES  IN  THE  SUPREME  COURT. 


Mitchell  v.  Williams. 


per  head.  They  were  left  with  Williams  for  his  use,  and  never 
cape  to  the  actual  possession  of  Roberts,  he  living  some  four 
or  five  miles  from  Williams.  After  the  expiration  of  the  year 
the  cows  were  demanded  of  Williams,  and  he  refused  to  give 
them  up.  On  a  like  demand  being  made  of  Roberts  at  his  resi- 
dence, he  replied  that  "  he  would  have  nothing  to  do  with  the 
matter,"  and  refused  to  go  and  see  Williams  on  the  subject. 
The  defendants  proved  that,  in  October,  1840,  four  of  the  cows 
in  question  were  sold  to  one  Jones,  in  virtue  of  two  executions 
upon  judgments  rendered  by  a  justice  of  the  peace  against  Wil- 
liams in  favor  of  Billings  and  Owens ;  but  it  turned  out  that 
both  judgments  were  void,  having  been  rendered  on  confession 
for  more  than  $50  each,  without  the  affidavit  required  by  2 
jR.  S.  245,  §  114,  sub.  3.  All  the  cows  in  question,  except 
one  which  had  been  killed  by  a  son  of  the  defendant  Williams, 
were  on  the  premises  of  the  latter  when  the  demand  was  made. 
The  defendants'  counsel  insisted  that  no  sufficient  evidence  of 
a  conversion  by  Roberts  had  been  given  j  but  the  circuit  judge 
ruled  otherwise,  and  directed  the  jury  to  render  a  verdict  for  the 
plaintiff  against  both  defendants  for  the  value  of  the  five  cows. 
The  defendants'  counsel  excepteM ;  and  the  jury  having  found 
a  verdict  in  accordance  with  the  judge's  directions,  the  defen- 
dants now  moved  for  a  new  trial  on  a  bill  of  exceptions. 

J.  Kernan  $  .7.  A.  Spencer,  for  the  defendants. 
W.  $  C.  Tracy,  for  the  plaintiff. 

By  the  Court,  COWEN,  J.     The  plaintiff  being  the  owner  of 
the  cows,  bailed  them  to  the  defendants  for  one  year  at  a  stipu- 
lated compensation.     The  bailment  was  for  the  special  benefit  - 
of  Williams,  with  whom  the  cows  were  left,  Roberts  residino 

*  & 

four  or  five  miles  distant  from  him.  At  the  expiration  of  the 
year  the  cows  were  demanded  by  the  plaintiff  of  Roberts  at  his 
residence.  Roberts  said  he  would  have  nothing  t6  do  with  the 
matter.  The  single  question  is  whether  this  was  prima  facie 


ROCHESTER,  OCTOBER,  1842.  15 


Mitchell  c.  Williams. 


evidence  of  a  conversion  by  him.  There  was  no  dispute  on 
the  argument,  that  a  conversion  had  been  made  out  against 
Williams.  No  doubt  is  raised  that  assumpsit  might  have  been 
brought  against  both,  on  the  Joint  promise  to  re-deliver  which 
is  implied  by  law;  (Story  on  Bailin.  89,  ^  116;)  but  it  is 
denied  that  trover  will  lie  against  Roberts,  except  for  an  actual 
conversion  by  him,  to  be  shown  by  at  least  an  unqualified  re- 
fusal to  deliver. 

It  was  held  in  Lockwood  v.  Bull  4"  Eager,  (1  Cowen,  322,) 
that  the  two  actions  of  trover  and  assumpsit  are  not  exactly 
concurrent :  that  is  to  say,  mere  neglect  of  one  or  both  to  de- 
liver the  property  to  the  bailor  will  not  necessarily  furnish 
ground  for  an  action  of  trover  ;  but  in  a  case  of  bailees,  though 
their  contract  be  joint,  yet,  to  sustain  trover  against  them  joint- 
ly, a  wrongful  conversion  by  both  must  be  shown.  The  de- 
fendants were  not  in  the  case  of  partners,  where  each  being 
the  general  agent  of  the  other,  a  refusal  by  one  is  evidence  of 
a  conversion  as  to  both.  (Holbrook  v.  Wight,  24  Wend. 
178.) 

The  sale  of  the  cows  on  the  judgments  and  executions  was  a 
mere  sham.  The  proceeding *was  a  nullity.  The  cows  re- 
mained with  Williams ;  and  there  was  nothing  in  the  case 
therefore  which  necessarily  embarrassed  either  of  the  defen- 
dants in  delivering  them.  If  Roberts  had  been  in  the  ac- 

o 

tual  possession,  and,  to  a  demand,  had  made  the  same  re- 
ply, "  I  will  have  nothing  to  do  with  the  cows,"  or  "  with 
the  matter,"  such  language  might,  per  se,  have  been  suffi- 
cient evidence  of  a  conversion.  (Smith  v.  Young,  1  Campb. 
439.)  But  did  he  mean  any  thing  more  than  that  he 
would  remain  neutral  in  the  controversy  which  he  thought 
•might  perhaps  arise  out  of  the  sale  1  The  plaintiff  had 
a  right  to  take  the  cows  from  Williams  and  drive  them  away. 
Was  there  in  Roberts'  act  any  thing  beyond  a  nonfeasance  1 
The  goods  came  lawfully  to  his  possession  ;  and  to  make  his 
mere  inaction  decisive  evidence  of  a  conversion — in  other 
words,  to  make  it  a  refusal — there  should  have  been  an  intent 


J6        CASES  IN  THE  SUPREME  COURT. 


Mitchell  ».  Williams. 


to  embarrass  the  plaintiff  in  his  steps  to  obtain  possession.  It 
is  not  to  be  denied  that  Roberts'  conduct  was  open  to  such  a 
construction,  He  was  the  near  relation  of  Williams,  and  his 
advice  to  give  up  the  cows  would  probably  have  been  decisive. 
If.  by  refusing  to  act,  he  intended  to  collude  with,  or  counte- 
nance or  aid  Williams  in  depriving  the  plaintiff  of  his  right,  by 
means  of  the  sham  judgments  and  executions,  that  would  amount 
to  a  positive  refusal,  and  so  furnish  the  usual  evidence  of  a 
conversion.  Indeed,  if  unexplained,  it  would  be  decisive  evi- 
dence of  a  conversion  ;  for  a  refusal  is  considered  such  in  prac- 
tice. I  will  not  deny  that  a  judge  may  advise  a  jury,  as  mat- 
ter of  law,  on  a  demand  and  refusal  unexcused,  to  find  a  con- 
version. The  refusal  would  be  an  exercise  of  a  dominion  over 
the  property  of  the  owner  incompatible  with  his  right.  (Bris- 
tol v.  Burt,  7  John.  Rep.  254,  257.)  But  there  must  be  a  re- 
fusal ;  something  more,  I  think,  than  a  naked  withdrawal  from 
all  dispute,  in  good  faith,  and  from  a  desire  to  avoid  getting 
between  two  fires.  In  Lockwood  v.  Bull  ^  Eager,  Bull  might, 
by  going  to  James,  who  had  got  the  property  and  held  it  ad- 
versely, have  been  instrumental  in  its  restoration.  But  the  pe- 
culiar condition  of  the  property,  it  being  in  dispute,  was  held 
to  be  an  adequate  excuse.  Under'  ordinary  circumstances,  the 
property  being  present  or  under  the  undisputed  control  of  the 
defendant,  a  mere  neglect  to  deliver,  without  saying  a  word,  or  a 
refusal  to  point  out  the  property  and  act  in  the  delivery,  would 
be  prima  facie  evidence  of  a  conversion.  As  was  said  by  Wood- 
worth,  J.  in  Lockwood  v.  Bull  fy  Eager,  "  mere  non-compliance 
with  the  demand,  after  a  reasonable  time  has  been  afforded  for 
a  delivery,  would  be  tantamount  to  a  refusal,  and  presumptive 
evidence  of  a  conversion,  and  throw  upon  the  defendant  the 
burthen  of  rebutting  the  presumption."  (1  Chit.  PL  159,  Jim. 
ed.  of  1840.)  Non-compliance  is  a  virtual  refusal ;  (Durell  v. 
Mosher,  8  John.  Rep.  445  j)  but  in  the  case  at  bar  it  was  qualified, 
or  at  least  might  have  been  so  by  the  circumstances.  In  Lock- 
wood  v.  Bull  4r  Eager,  a  majority  of  the  court  acting  for  the  jury 
on  a  case,  found  for  the  defendant  upon  facts  not  stronger  for 


ROCHESTER,  OCTOBER,  1842.  17 


Mitchell  t>.  Williams. 


him,  I  think,  than  we  have  here  for  Roberts.  The  difficulty  is, 
that  here  the  judge  told  the  jury  in  so  many  words  to  find  for 
the  plaintiff.  Had  he  told  them  the  reply  of  Roberts  \vas 
equivocal,  and  left  its  meaning  to  them,  and  they  had  put  the 
same  construction  upon  it  as  he  did,  that  would  have  been 
clearly  right.  (Harger  v.  JW  Mains,  4  Watts,  418.)  I  am 
certainly  with  him  in  the  suspicion  that  what  Roberts  said  might 
have  been  mere  affectation  of  a  desire  to  avoid  difficulty,  and 
intended  to  countenance  Williams  and  his  family  in  holding 
over  against  the  plaintiff;  but  strictly,  I  think  the  question 
should  have  been  submitted  to  the  jury.  With  the  case  of 
Lockwood  v.  Bull  <f  Eager  before  us,  I  do  not  see  th?t  we  can 
escape  from  saying  so  much.  For  that  reason  I  think  there 
should  be  a  new  trial. 

New  trial  granted. 


[END  or  OCTOBSB, 


DECISIONS  OF  CASES 


AHOUEO   AT    Tl 


SPECIAL     TERM, 

DECEMBER,  1842 


ANONYMOUS. 

In  an  action  against  the  maker  and  endorser  of  a  promisory  note,  after  sevcranco 
cud  judgment  against  one  of  the  defendants,  his  name  should  no  longer  be  used 
cither  in  the  pleadings  or  proceedings  against  the  other  defendant. 

Accordingly  where,  after  severance  and  judgment  against  C.  D.,  one  of  the  defen- 
dants in  such  action,  the  other  instituted  proceedings  for  judgment  as  in  case  of 
nonsuit,  entitling  his  papers  thus,  "  A.  B.  impleaded  with  C.  D.  ads."  &c. ; 
held,  that  they  were  not  properly  entitled,  and  the  motion  was  therefore  denied. 

Ji.  Tdber,  for  the  defendant,  moved  for  judgment  as  in  case 
of  nonsuit  on  an  affidavit  in  which  the  suit  was  entitled,  A.  B. 
impleaded  with  C.  D.  at  the  suit  of  the  plaintiff.  The  suit 
was  originally  commenced  against  the  two  defendants,  the  one 
being  maker  and  the  other  endorser  of  a  promissory  note  ;  but 
the  suit  had  been  severed  and  judgment  perfected  against  one 
of  the  defendants  before  the  other  gave  notice  of  this  motion. 

J.  L.  Tillinghast)  for  the  plaintiff,  objected  that  the  affidavit 
was  wrongly  entitled.  There  was  no  suit  pending  against  the 
two  defendants  mentioned  in  the  entitling  of  the  affidavit. 

By  the  Court,  BRONSON,  J.  The  objection  is  fatal.  After 
the  severance  of  the  action  and  judgment  against  one  of  the 

[19] 


CASES  IN  THE  SUPREME  COURT. 


The  People  ».  The  Supervisors  of  Niagara. 


defendants,  his  name  should  no  longer  be  used  either  in  the 
pleadings  or  proceedings  against  the  other  defendant.  But  the 
motion  may  be  renewed. 

Ordered  accordingly. 


THE  PEOPLE,  ex  rel.  MCMASTER  &  HARVEY,  vs.  THE  BOARD 
or  SUPERVISORS  OFJTHE  COUNTY  OF  NIAGARA. 

Associations  formed  under  the  general  banking  law  are  corporations ;  and,  like 
other  moneyed  or  stock  corporations  deriving  an  income  or  profit,  are  liable  to 
taxation  on  their  capital. 

In  ascertaining  the  sum  to  be  inserted  in  the  assessment  roll,  no  regard  should  be 
had  either  to  accumulations  or  losses  of  capital  in  the  course  of  the  business  of 
the  company  ;  but  only  to  the  amount  of  capital  stock  paid  in  and  secured  to  be 
paid,  after  deducting  expenditures  for  real  estate,  and  such  of  the  stock  as  the 
statute  exempts  from  taxation. 

To  entitle  a  corporation  to  have  its  name  stricken  from  the  assessment  roll  pursuant 
to  1  12.  S.  416,  §  9,  the  affidavit  presented  to  the  board  of  supervisors  must  show 
that  the  company  is  not  in  the  receipt  of  any  profits  or  income :  an  affidavit 
showing  that  it  is  not  in  the  receipt  of  any  net  profits  or  income  is  insufficient. 

The  word  income  means  that  which  is  received  from  any  business  or  investment  of 
capital,  without  reference  to  outgoing  expenditures.  Per  BRONSON,  J. 

Otherwise  as  to  the  term  profits,  which  generally  means  the  gain  made  upon  any 
business  or  investment  when  both  receipts  and  payments  are  taken  into  the  ac- 
count. Per  BRONSON,  J. 

Rail-road  companies  are  not  taxed  upon  their  capital,  but  upon  the  valuation  of 
their  real  estate  in  the  several  towns  through  which  the  road  passes  ;  and,  sem. 
ble,  they  are  liable  to  be  so  taxed,  though  not  in  the  receipt  of  any  profits  or  in. 
come.  Per  BRONSON,  J. 

THE  assessors  of  the  town  of  Lockport,  in  the  county  of 
Niagara,  assessed  the  Canal  Bank  of  Lockport)  a  corporation 
under  the  general  banking  law,  $140,000  for  its  personal 
estate.  They  also  assessed  the  Lockport  Bank  and  Trust  Com- 
pany, another  corporation  under  the  general  banking  law, 
$4800  for  its  real  estate,  and  $102,000  for  personal  estate. 
The  assessors  of  the  several  towns  in  the  county  through  which 
the  road  of  the  Lockport  and  Niagara  Falls  Rail-Road  Compa- 


ALBANY,  DECEMBER,  1842.  21 


The  People  c.  Tho  Supervisors  of  Niagara. 


ny  passes,  assessed  the  company  several  sums  of  money  for  its 
real  estate,  which,  in  the  aggregate,  amounted  to  the  sum  of 
$141,200.  At  the  annual  meeting  of  the  board  of  supervisors 
in  Octohcr  last,  the  officers  of  these  companies  applied  to  the 
board  to  have  the  names  of  the  corporations  stricken  from  the 
assessment  rolls,  and  they  presented  affidavits,  which  they  were 
afterwards  permitted  to  amend  by  adding  further  affidavits. 
The  cashier  of  the  Canal  Bank  of  Lockport  made  affidavit 
"  that  the  said  bank  has  suffered  a  loss  of  its  capital  from  the 
depreciation  of  state  stock  and  other  causes,  to  an  amount  ex- 
ceeding the  whole  income  or  prrfu's  of  the  bank  for  the  present 
year."  In  the  supplemental  affidavit  afterwards  produced  the 
cashier  swore  "  that  the  said  bank  is  not,  and  has  not  been  for 
the  year  last  past,  in  the  receipt  of  any  profits  or  income  over 
and  above  the  ordinary  expenses  and  losses  of  the  said  bank  dur- 
ing said  year."  Affidavits  in  nearly  the  same  words  were  sub- 
mitted on  behalf  of  the  other  bank. 

The  first  affidavit  submitted  on  behalf  of  the  rail-road  com- 
pany stated,  "  that  the  said  company  is  not  in  the  receipt  of 
any  profits  or  income  ;  all  the  receipts  of  the  company  for  the 
last  year  have  been  absorbed  in  the  necessary  expenses,  repairs, 
and  improvements"  The  second  affidavit  on  behalf  of  the 
company  stated  "  that  said  company  has  not,  during  the  year 
last  past,  and  is  not  now,  in  the  receipt  of  any  profits  or  income 
tvhatever  over  and  above  the  ordinary  expenses  and  losses  for 
*aid  year."  The  person  making  this  affidavit  swore  that  the 
word  "  improvements"  in  the  first  affidavit  meant  nothing  more 
than  ordinary  repairs. 

On  receiving  these  affidavits  the  board  of  supervisors  struck 
the  names  of  all  three  of  the  corporations  from  thf  assessment 
rolls. 

The  relators  are  taxable  inhabitants  of  the  town  of  Lockport, 
and,  as  such,  are  actually  assessed  the  present  year  for  real  and 
personal  estate.  They  served  papers  upon  the  board  and  gave 
notice  of  this  motion  for  a  mandamus  to  compel  the  board  to 
restore  the  names  of  these  corporations  to  the  assessment  rolls. 


22  CASES  IN  THE  SUPREME  COURT. 

The  People  ».  The  Supervisors  of  Niagara. 

The  board  thereupon  passed  a  resolution  instructing  their  coun- 
sel to  waive  all  objection  to  the  motion  as  to  the  form  of  the 
remedy,  and  all  other  objections  which  might  prevent  a  decis- 
ion of  the  question  on  its  merits. 

S.  J.  Cowen,  for  the  relators,  now  moved  for  a  mandamus 
in  pursuance  of  the  notice. 

S.  Stevens,  opposed  the  motion  as  counsel  for  the  corpora- 
tions. 

By  the  Court,  BRONSON,  J.  So  far  as  relates  to  the  ques- 
tion of  taxation,  there  is  no  difference  between  banks  created 
under  the  general  law  and  those  which  have  special  char- 
ters. Both  are  corporations ;  (The  People  \.  Assessors  of 
Watertown,  1  Hill,  616  ;)  and,  like  other  moneyed  or  stock 
corporations  deriving  an  income  or  profit,  are  liable  to  taxation 
on  their  capital.  (1  R.  S.  414,  tit.  4.)  It  is  not  a  tax  upon 
income  or  profits,  but  upon  capital.  And  the  tax  is  to  be 
levied  upon  the  amount  of  the  capital  stock  of  the  corporation 
paid  in,  and  secured  to  be  paid  in,  after  deducting  the  amount 
expended  for  its  real  estate,  which  is  taxed  separately,  and  the 
amount  of  stock  which  may  be  owned  by  the  state  and  by  in- 
corporated literary  and  charitable  institutions.  (Id.  ^  1)2,  6, 
10.)  No  respect  is  paid  either  to  accumulations  or  losses  of 
capital  in  the  course  of  the  business  of  the  company  ;  but  the 
amount  paid  and  secured  to  be  paid  as  capital,  is  taken  as  the 
true  sum  10  be  inserted  in  the  assessment  roll.  (Bank  of  Utica 
v.  City  of  Utica,  4  Paige,  399.)  It  would  have  been  a  more 
just  and  equitable  rule  to  take  the  amount  of  capital  as  it  ac- 
tually exists  at  the  time  of  making  the  assessment.  But  as 
this  would  involve  an  enquiry  into  the  private  concerns  of  the 
corporation  and  the  persons  dealing  with  it,  and  as  it  would 
often  be  very  difficult,  if  not  impracticable,  to  arrive  at  a  cor- 
rect result,  the  legislature  has  thought  proper  to  adopt  another 
standard.  That  standard  is  so  plainly  laid  down  by  the  statute 


ALBANY,  DECEMBER,  1842.  23 

The  People  0.  The  SopervHon  of  Niagara. 

that,  so  far  as  I  know,  none  of  our  moneyed  corporations  have 
heretofore  claimed  any  exemption  from  taxation  on  the  ground 
that  a  part  of  their  capital  had  been  lost  j  but  they  have  from 
time  to  time  applied  to  the  legislature  to  reduce  the  nominal 
to  the  actual  amount  of  their  capital,  as  the  only  means  of  di- 
minishing the  burden  of  taxation. 

These  banks  have  not  set  up  the  loss  of  a  portion  of  their 
capital  as  a  ground  for  reducing  the  amount  of  their  assess- 
ments ;  but  it  is  urged  in  another  form,  as  the  ground  for  a  to- 
tal exemption  from  taxation.  The  loss  of  capital  is  used  as  a 
set-off  against  income  or  profits.  The  first  affidavit  laid  before 
the  supervisors  was,  that  the  bank  "  has  suffered  a  loss  of  its 
capital"  from  several  causes  "  to  an  amount  exceeding  the 
•whole  income  or  profits  of  the  bank  for  the  present  year  j"  and 
the  second  affidavit  states  the  same  thing  in  another  form,  to 
wit,  that  the  bank  has  not  during  the  last  year  been  "  in  the 
receipt  of  any  profits  or  income  over  and  above  the  ordinary 
expenses  and  losses"  of  the  corporation.  This  supposes  that 
the  supervisors  may  go  into  .the  question  of  profit  and  loss,  and 
see  how  that  account  stands  upon  the  operations  of  the  bank  for 
the  last  year.  But  I  do  not  so  read  the  statute.  A  tax  is  to  be 
levied  upon  all  monied  or  stock  corporations  "  deriving  an  income 
or  profit  from  their  capital,  or  otherwise."  (1  R.  S.  414,  §  1.) 
And  the  name  of  the  corporation  is  only  to  be  stricken  from 
the  assessment  roll  when  the  president  or  other  proper  officer 
shall  make  affidavit,  "  that  such  company  is  not  in  the  receipt 
of  any  profits  or  income."  (§  9.)  It  is  undoubtedly  true  that 
"  profits"  and  "  income"  are  sometimes  used  as  synonymous 
terms  ;  but,  strictly  speaking,  "  income"  means  that  which 
comes  in,  or  is  received  from  any  business  or  investment  of 
capital,  without  reference  to  the  outgoing  expenditures  ;  while 
"  profits"  generally  mean  the  gain  which  is  made  upon  any 
business  or  investment  when  both  receipts  and  payments  are 
taken  into  the  account.  "  Income,"  when  applied  to  the  affairs 
of  individuals,  expresses  the  same  idea  that  revenue  does  when 
applied  to  the  affairs  of  a  state  or  nation ;  and  no  one  would 


24  CASES  IN  THE  SUPREME  COURT. 

The  People  o.  The  Supervisors  of  Niagara. 

think  of  denying  that  our  government  has  any  revenue  because 
the  expenditures  for  a  given  period  may  exceed  the  amount  of 
receipts. 

This  statute  has  plainly  distinguished  between  the  gains  or 
clear  profits  of  a  corporation,  and  its  income  or  receipts. 
Manufacturing  and  marine  insurance  companies,  "  whose  net 
annual  income  shall  not  exceed  five  per  cent  on  the  capital 
stock,"  are  allowed  to  commute  for  their  taxes.  (§11.)  And 
turnpike,  bridge  and  canal  companies,  "  whose  net  annual  in- 
come shall  not  exceed  five  per  cent  on  the  capital,"  are  wholly 
exempt  from  taxation.  (§  12.)  But  there  is  no  such  qualifi- 
cation of  the  word  "  income"  when  applied  to  other  corpora- 
tions. They  are  subject  to  taxation  when  they  are  "  in  the  re- 
ceipt of  any  profits  or  income."  It  is  not  when  the  income  ex- 
ceeds the  losses,  but  when  there  is  any  income,  without  regard 
to  losses.  If  the  legislature  had  intended  clear  gain  or  net 
profits,  it  can  hardly  be  doubted  that  some  other  form  of  ex- 
pression would  have  been  used. 

The  13th  section  goes  still  further  to  confirm  what  has  al- 
ready been  said.  After  providing  for  the  total  exemption  of 
certain  corporations  whose  "  net  annual  income"  does  not  ex- 
ceed a  certain  sum,  the  legislature  go  on  in  this  section  to  point 
out  the  mode  of  ascertaining  the  fact  on  which  the  exemption 
rests.  Two  of  the  officers  must  make  affidavit  stating  "  the 
income  and  profits,  and  the  total  expenditures  during  the  pre- 
ceding year."  We  here  find  profits  as  well  as  income  used  to 
designate  the  receipts  of  the  company,  and  put  in  opposition 
to  expenditures.  This  shows  the  sense  in  which  the  terms 
"  profits"  and  "  income"  in  this  statute  are  to  be  understood.  The 
exception  of  particular  corporations  out  of  the  operation  of 
the  general  rule  laid  down  by  the  statute,  and  making  the  ques- 
tion of  taxation  in  the  excepted  cases  turn  on  the  amount 
of  net  income,  amounts  to  such  a  legislative  construction  of 
the  word  "  income"  in  the  preceding  sections  as  forbids  the  ex- 
emption which  is  set  up  by  these  banks. 

It  may  be  thought  unreasonable  to  impose  taxes  upon  a  cor- 


ALBANY,  DECEMBER,  1842.  25 

The  People  r.  The  Supervisors  of  Niagara. 

poration  which  is  not  in  the  receipt  of  any  clear  profits ;  but 
it  is  no  more  than  happens  to  the  owners  of  other  property  both 
real  and  personal.  The  owner  is  assessed  and  taxed  on  the 
value  of  his  estate,  notwithstanding  the  property  may  be  so 
managed  as  to  prove  a  charge  upon  the  owner,  instead  of  yield- 
ing any  net  profits. 

Many  of  our  banks,  both  free  and  safety-fund,  might  for 
several  years  past  have  made  out  as  strong  a  case  for  exemp- 
tion as  we  have  here  ;  and  yet  I  am  inclined  to  think  this  the 
first  instance  where  such  a  claim  has  been  seriously  urged. 
The  fact  that  the  claim  has  not  been  set  up  by  those  interested 
to  make  it,  goes  to  confirm  the  construction  that  we  think  the 
statute  ought  to  receive. 

As  no  affidavits  were  produced  that  the  banks  were  "not 
in  the  receipt  of  any  profits  or  income,"  we  are  of  opinion 
that  the  names  of  the  companies  were  improperly  stricken 
from  the  assessment  roll. 

Most  of  what  has  been  said  about  the  two  banks  is  equally 
applicable  to  the  rail-road  company.  That  falls  within  the 
class  of  "  stock  corporations,"  and  without  an  affidavit  that  it 
was  "  not  in  the  receipt  of  any  profits  or  income,"  it  should  not 
have  been  struck  from  the  assessment  rolls.  Both  of  the  affi- 
davits submitted  by  the  officers  of  the  corporation  impliedly 
admit  that  the  company  was  in  the  receipt  of  profits  or  income. 
The  exemption  is  claimed  upon  the  ground  that  the  income  or  re- 
ceipts "  have  been  absorbed  in  the  necessary  expenses,  repairs, 
and  improvements,"  or,  as  the  other  affidavit  alleges,  in  "  the 
ordinary  expenses  and  losses"  of  the  company.  Neither  of  the 
affidavits  makes  out  a  case  for  exemption  within  the  meaning 
of  the  statute. 

I  am  inclined  to  think  that  the  assessments  upon  the  rail-road 
company  stand  upon  still  stronger  ground  than  that  upon  the 
banks.  Such  companies  are  not,  like  banks,  taxed  upon  capital ; 
but  they  are,  like  other  land  owners,  taxed  upon  the  valuation  of 
their  real  estate  in  the  several  towns  through  which  the  road 
passes.  (Mohawk  and  Hudson  R.  R.  Co.  v.  Clute,  4  Paige,  384  ; 

VOL.  IV.  4 


26  CASES  IN  THE  SUPREME  COURT. 

The  People  c.  The  Supervisors  of  Niagara. 

1  R.  S.  387,  §  1 ;  id.  389,  §  6.)  The  exemption  we  have 
been  considering,  (p.  414,  tit.  4,)  seems  to  be  confined  to  a  tax 
on  capital,  except  in  the  case  of  turnpike,  bridge  and  canal 
companies.  When  the  corporation  is  subject  to  a  tax  on  capi- 
tal, the  amount  paid  for  its  real  estate  is  first  deducted,  and  the 
land  is  taxed  separately.  The  exemption  goes  only  to  the  tax 
on  the  balance  of  capital,  and  leaves  the  lands  of  the  cor- 
poration, like  all  other  lands,  to  be  taxed  without  any  ref- 
erence to  the  debts,  income  or  profits  of  the  owner.  In 
this  view  of  the  case,  a  rail-road  company  would  be  liable  to 
assessment,  although  not  in  the  receipt  of  any  profits  or  in- 
come— the  assessment  being  upon  real  estate,  and  the  exemp- 
tion going  only  to  a  tax  on  capital.  Such  are  my  present  im- 
pressions ;  but  as  this  view  was  not  suggested  on  the  argument, 
and  is  not  necessary  to  the  decision  of  the  case,  the  question 
should  be  considered  open  for  further  discussion. 

As.the  legislature  has  often  manifested  the  disposition  to  en- 
courage individual  effort  in  works  of  internal  improvement,  it  is 
highly  probable  that  they  will  place  unproductive  rail-road 
companies  on  the  same  footing  with  turnpike,  bridge  and  ca- 
nal corporations.  But  as  the  law  now  stands,  this  exemption 
cannot  be  maintained. 

As  notice  has  been  given  of  this  application,  and  we  enter- 
tain no  doubt  upon  the  question,  a  peremptory  writ  will  be  or- 
dered. But  the  parties  will  be  at  liberty  to  put  the  matter  in 
such  form  as  will  authorize  a  record  to  be  made  of  our  judg- 
ment, upon  which  a  writ  of  error  may  be  brought  if  the  par- 
ties shall  be  so  advised. 

Motion  granted. 


ALBANY,  DECEMBER,  1842.  27 


Lee  T.  Tillotaon. 


WILLIAMS  vs.  BLAUVELT. 

An  affidavit  on  which  to  move  for  judgment  as  in  case  of  nonsuit  in  an  action  of 
replevin,  is  insufficient  unless  it  state  that  neither  party  has  noticed  the  cauw  for 
trial. 

Jl.  Taber,  for  the  defendant,  moved  for  judgment  as  in  case 
of  nonsuit  in  an  action  of  replevin,  on  an  affidavit  which  sta- 
ted that  the  plaintiff  had  neglected  to  notice  or  bring  the  cause 
to  trial  at  a  circuit  where  it  might  have  been  tried. 

S.  B,  H.  Judah,  for  the  plaintiff,  objected  that  the  affidavit 
was  not  sufficient,  because  it  did  not  state  that  neither  party  had 
noticed  the  cause  for  trial.  (2  R.  S.  530,  §  46.) 

By  t/le  Court,  BRONSON,  J.     The  objection  is  fatal. 

Motion  denied. (a) 

«  Sei  Poltz  v.  Curtis,  (9  Wend.  497.) 


LEE  vs.  TILLOTSON. 

After  an  application  to  set  aside  a  report  of  referees  on  the  merits  is  decided,  a 
motion  for  leave  to  have  a  statement  of  facts  settled  and  inserted  in  the  judgment 
record,  with  a  view  to  a  writ  of  error,  will  be  denied,  if  it  appear  that  the  time 
limited  for  bringing  error  has  expired. 

The  time  limited  for  bringing  error,  in  such  case,  dates  from  the  "  final  determination" 
of  the  court,  i.  c.  the  term  when  the  motion  to  set  aside  the  report  was  actually 
decided;  and  not  from  the  entry  of  the  rule  for  judgment  upon  the  report,  not 
from  the  filing  of  the  judgment  record. 

D.  Burwell)  for  the  defendant,  moved  for  leave  to  draw  up 
a  statement  of  facts  from  the  special  report  made  by  the  ref- 
erees, and  to  have  such  statement  settled  and  inserted  in  the 
judgment  record,  to  the  end  that  the  defendant  might  bring  a 


28        CASES  IN  THE  SUPREME  COURT. 


Lcc  v.  Tillotson. 


•writ  of  error.  He  read  an  affidavit,  stating  that  judgment  for 
the  plaintiff  was  entered  upon  the  report  of  the  referees  on  the 
21st  of  January,  1841. 

A.  Taber,  for  the  plaintiff,  read  an  affidavit  from  which  it 
appeared  that  the  referees  made  their  report  in  March,  1837, 
for  §4594,16  ;  that  the  defendant  made  a  motion  to  set  aside 
the  report  on  the  merits,  which  was  argued  at  May  term,  1840, 
and  decided  in  July  term  following,  by  denying  the  motion. 
Immediately  after  the  decision,  the  defendant  requested  the 
plaintiff's  attorney  to  delay  the  entry  of  judgment  until  the 
first  of  January  following,  by  which  time  he  said  he  would 
make  payment ;  and,  in  consideration  of  the  delay,  the  defen- 
dant agreed  that  he  would  relinquish  and  surrender  the  right  to 
bring  a  writ  of  error.  This  proposition  was  acceded  to  by  the 
plaintiff,  who  waited  until  the  21st  of  January,  1841,  when  (the 
defendant  having  failed  to  make  payment  as  he  had  promised) 
judgment  was  perfected.  Other  delays  had  been  granted  to 
the  defendant  since  the  entry  of  judgment,  and  he  had  repeat- 
edly assured  the  plaintiff  that,  in  consequence  of  such  lenity, 
he  gave  up  all  right  to  prosecute  a  writ  of  error. 

Taber  said  the  defendant  was  now  too  late  to  bring  error. 
The  writ  should  have  been  sued  out  within  two  years  after  the 
final  determination  of  the  court  on  the  motion  to  set  aside  the 
report  of  the  referees.  The  time  was  to  be  reckoned  from  that 
determination,  and  not  from  the  day  the  record  was  filed.  (2 
R.  S.  594,  §  21 ;  Fleet  v.  Youngs,  11  Wend.  522.)  He  also 
contended,  that  the  defendant  was  chargeable  with  bad  faith  in 
attempting  to  bring  error  after  he  had  procured  delay  in  enter- 
ing the  judgment  by  agreeing  that  he  would  not  bring  error. 
(Ames  v.  Webber,  11  Wend.  186  ;  Gates  v.  West,  2T.R.183-, 
Cave  v.  Massey,  5  Dowl.  fy  Ryl.  624 ;  Camden  v.  Edie,  1  H. 
Black.  21 ;  Wright  v.  JVwtf,  1  T.  R.  388.) 

Burwell  said  it  did  not  appear  when  the  report  of  the  ref- 


ALBANY,  DECEMBER,  1842.  29 


Lee  r.  Tillotson. 


erees  was  filed  and  a  rule  for  judgment  thereupon  entered  j  that 
the  two  years  would  not  commence  running  until  that  was 
done.  And  besides,  the  plaintiff  can  only  take  advantage  of 
the  limitation  by  plea,  after  the  writ  of  error  shall  be  sued  out. 
(Fleet  v.  Youngs,  11  Wend.  522.) 

By  tJie.  Court,  BRONSON,  J.  Although  it  does  not  appear 
upon  the  papers  that  a  rule  for  judgment  was  entered  at  the 
next  term  after  the  report  was  made,  there  can  be  no  doubt 
that  it  was  done.  And  besides,  if  the  rule  was  never  entered, 
it  would  be  almost  a  matter  of  course  to  allow  it  to  be  done 
nunc  pro  tune. 

But  I  think  the  question  of  limitation  does  not  turn  on  the 
time  of  entering  the  rule  for  judgment,  but  on  the  time  when 
the  final  determination  was  made  on  the  motion  to  set  aside  the 
report.  The  rule  for  judgment  was  undoubtedly  entered  in 
May  term,  1837  j  and  if  we  date  from  that,  the  time  for  bring- 
ing a  writ  of  error  had  expired  before  the  motion  for  a  re- 
hearing was  made,  which  was  in  May  term,  1840. 

The  question  then  is,  whether  the  limitation  dates  from  the 
final  determination  of  the  court,  which  was  made  in  July  term, 
1840,  or  from  the  subsequent  filing  of  the  judgment  record  in 
January,  1841.  The  statute  provides,  that  "all  writs  of  error 
upon  any  judgment  or  final  determination  rendered  in  any 
cause,"  "  shall  be  brought  wi(,hin  two  years  after  the  rendering 
of  such  judgment  or  final  determination,  and  not  after."  (2 
R.  S.  594,  §  21.)  The  judgment  or  final  determination  in 
this  cause  was  rendered  in  July  term,  1840,  when  the  motion 
which  had  been  made  to  set  aside  the  report  of  the  referees  was 
denied.  The  record  which  was  afterwards  filed  was  not  the 
judgment,  but  only  a  written  memorial  of  the  judgment  which 
had  been  previously  rendered.  The  court  of  errors  arrived  at 
the  same  conclusion  upon  this  question  in  Fleet  v.  Youngs ,  (11 
Wend.  522.)  It  follows,  that  the  time  for  bringing  a  writ  of 
error  has  already  expired,  and  we  ought  not  to  jjut  the  plain- 


30  CASES  IN  THE  SUPREME  COURT. 

Matter  of  Faulkner. 

tiffs  to  the  expense  and  ourselves  to  the  inconvenience  of  set- 
tling a  case,  when  we  see  that  it  can  do  no  good. 

It  would  be  clearly  against  good  faith  for  the  defendant  to 
bring  error  after  having  obtained  delays  upon  an  agreement 
that  he  would  not  do  it,  and  the  motion  might,  perhaps,  be  de- 
nied upon  that  ground.  But  it  is  enough  that  he  is  too  late. 

Motion  denied. 


Matter  of  FAULKNER,  an  absconding  or  concealed  debtor. 

Where  one  against  whom  process  has  been  instituted  as  an  absconding  or  concealed 
debtor,  brings  a  certiorari  pursuant  to  2  JR.  S.  602,  §  67,  and  accompanies  the 
same  by  a  bond  in  the  form  prescribed  by  §  74,  he  must,  within  ten  days  after  the 
filing  of  the  certiorari,  give  notice  of  the  names,  additions  &c.  of  the  sureties  in 
the  bond  ;  and  the  creditors  have  then  twenty  days  within  which  to  except  to 
the  sureties. 

If  such  notice  be  not  given,  or  if  the  sureties  fail  to  justify  on  being  exceptcd  to 
and  new  sureties  be  not  substituted,  the  certiorari  will  cease  to  operate  as  a  stay, 
and  the  creditor  may  proceed  to  the  appointment  of  trustees  as  if  no  certiorari 
had  been  brought. 

An  ex  parte  justification  by  the  sureties  at  the  time  of  giving  the  bond,  cannot  be 
made  to  answer  as  a  substitute  for  the  aoove  steps  on  the  part  of  the  debtor. 
Semble. 

If  the  debtor,  after  filing  the  bond,  omit  the  steps  necessary  to  perfect  it,  the  cer. 
tiorari  ceases  to  operate  as  a  stay  of  proceedings  without  obtaining  a  superseded*. 

ON  the  16th  of  April  last,  an  attachment  was  issued  against 
Faulkner  as  an  absconding  or  concealed  debtor  by  the  circuit 
judge  of  the  first  circuit.  On  the  application  of  Faulkner, 
illeging  that  he  was  a  resident  of  this  state,  and  was  not  an  ab- 
sconding or  concealed  debtor,  the  matter  was  referred  to  the 
New^York  court  of  C.  P.  pursuant  to  2  R.  S.  9,  §  43—50.  On 
the  3d  of  September  last,  the  C.  P.  decided  against  the  debtor, 
and  held  that  the  allegations  in  his  petition  were  not  proved. 
On  the  14th  of  September,  the  debtor  procured  the  allowance 
of  a  writ  of  certiorari  by  one  of  the  justices  of  this  court  to  re 


ALBANY,  DECEMBER,  1842.  31 

Matter  of  Faulkner. 

move  the  decision  of  the  court  of  C.  P.  into  this  court  for  ex- 
amination, pursuant  to  2  R.  S.  602,  art.  2.  The  certiorari  was 
filed  in  the  court  of  C.  P.  on  the  17th  of  September,  together 
with  a  bond  executed  by  the  debtor  and  two  sureties,  with  such 
penalty  and  condition  as  is  prescribed  by  the  74th  section  of  that 
article,  and  on  that  day  each  of  the  sureties  made  affidavit  that 
he  was  a  householder  &c.,  and  worth  double  the  penalty  of  the 
bond.  The  bond  was  approved  by  the  recorder  of  New-York  ; 
but  no  copy  of  the  affidavit  was  served,  nor  was  notice  of  the 
names,  additions,  or  places  of  residence  of  the  bail  ever  given 
to  the  attorney  for  the  attaching  creditors.  The  attorney  for  the 
creditors  on  enquiring  into  the  matter  ascertained,  as  he  says, 
that  the  sureties  were  "  mere  men  of  straw  j"  and  on  the  23d  of 
September  he  entered  an  exception  to  the  sureties,  and  gave 
notice  thereof  to  the  attorney  for  the  debtor.  After  waiting 
more  than  ten  days,  the  attorney  for  the  creditors  gave  notice 
on  the  6th  of  October — the  sureties  not  having  justified — that 
he  should  apply  to  the  circuit  judge  for  the  appointment  of 
trustees  ;  and  on  the  13th  of  October  the  application  was  made, 
pursuant  to  the  notice,  and  trustees  were  appointed.  On  the 
28th  of  October,  the  circuit  judge  reported  his  proceedings 
upon  the  attachment  to  this  court  pursuant  to  the  statute. 

S.  B.  H.  Judah,  for  the  debtor,  now  moved  that  the  appoint 
ment  of  trustees  be  vacated  and  set  aside  for  irregularity,  and 
that  an  attachment  be  issued  against  James  Smith,  the  attorney 
for  the  attaching  creditors,  for  proceeding  in  the  matter  after 
the  filing  of  the  certiorari  and  bond  in  the  C.  P.,  which  he  in- 
sisted suspended  all  proceedings  on  the  warrant  until  the  final 
decision  of  this  court  should  be  made.  (2  R.  S.  604,  §  74.) 

J.  Rhoades,  for  the  attaching  creditors,  insisted  that  the  cer- 
tiorari did  not  operate  as  a  stay  of  proceedings,  because  no 
notice  of  the  sureties  was  given,  and  because  they  did  not  justi- 
fy when  an  exception  was  taken,  and  were  "  mere  men  ol 
{•:I-:MV.M  On  papers  served  for  that  purpose,  x 


32        CASES  IN  THE  SUPREME  COURT. 


Matter  of  Faulkner. 


Rhoades  now  moved  for  an  order  upon  Mr.  Judah,  the 
attorney  for  the  debtor,  to  unite  with  Mr.  Smith,  the  attorney 
for  the  creditors,  in  drawing  a  check  in  favor  of  the  trustees 
upon  the  Bank  of  New-York  for  certain  moneys  which,  in 
the  course  of  the  proceedings,  had  been  deposited  in  that  bank 
to  the  joint  credit  of  the  two  attorneys  to  await  the  event  of 
the  proceedings. 

Judah  opposed  this  motion. 

By  the  Court)  BRONSON,  J.  These  motions  turn  mainly  upon 
the  question  whether  the  debtor  has  been  regular  in  his  pro- 
ceedings in  relation  to  bail  upon  the  writ  of  certiorari.  The 
statute  provides  that,  upon  riling  the  writ  and  bond,  all  further 
proceedings  upon  the  warrant  shall  be  suspended  until  the  final 
decision  of  the  court  of  review.  (2  R.  S.  604,  §75.)  But 
we  must  look  at  the  74th  section  for  the  purpose  of  ascertain- 
ing what  bond  is  to  be  given,  and  how  it  is  to  be  approved. 
That  section  provides,  that  where  the  writ  of  error  or  certiorari 
is  brought  by  the  debtor,  "  it  shall  not  be  effectual  unless  ac- 
companied by  a  bond,  with  sureties,  to  the  attaching  creditors, 
to  be  approved  in  the  same  manner ,  in  the  like  penalty,  and 
with  the  same  condition  as  prescribed  in  the  case  of  a  writ  of 
error  not  intended  to  stay  proceedings  on  a  judgment"  The 
"  prescribed  manner"  in  which  the  bond  here  referred  to  is  "  to 
be  approved,"  is  pointed  out  by  the  34th  and  35th  sections  Oi 
the  same  title.  (Id.  597.)  The  party  prosecuting  the  writ, 
within  ten  days  after  the  filing  thereof,  is  to  give  notice  of  the 
names,  additions  and  places  of  residence  of  the  sureties  in  the 
bond,  and  the  other  party  then  has  twenty  days  to  except  to 
the  sureties.  Within  ten  days  after  notice  of  the  exception,  the 
sureties,  or  new  sureties  in  their  place,  must  justify  by  affida- 
vit, and  a  copy  of  the  affidavit  must  be  served  on  the  attor- 
ney for  the  defendant  in  error.  This  is  the  only  prescribed 
mode  of  approving  the  bond.  In  this  case  the  debtor  wholly 
omitted  to  give  notice  of  the  names,  additions  &c.  of  the 
sureties;  (Fleet  v.  Youngs,  11  Wend.  526;)  and  when  the 


ALBANY,  DECEMBER,  1842.  33 

Matter  of  Faulkner, 

creditors — although  they  were  not  obliged  to  do  so  without 
notice — excepted  to  the  sureties,  no  justification  followed.  The 
debtor  failed  to  have  the  bond  "  approved"  in  the  proper  man 
ner,  and  the  statute  declares  that  without  such  approval  the 
writ  "  shall  not  be  effectual."  (§  74.)  There  was,  therefore, 
no  stay  of  proceedings. 

There  is  no  necessary  repugnancy  between  the  74th  and  75th 
sections.  On  filing  the  writ  and  bond,  in  the  proper  form, 
the  proceedings  on  the  warrant  are  immediately  suspended. 
But  the  debtor  must  take  the  proper  steps  to  have  the  bond 
approved,  or  the  writ  will  cease  to  operate  as  a  stay,  and  the 
creditors  may  proceed. 

It  is  said  that  the  writ  will  not  cease  to  operate  until  it  has 
been  superseded.  (2  R.  S.  598,^36;  Fleet  v.  Youngs,  11 
Wend.  526.)  But  this  provision  relates  to  the  ordinary  writ 
of  error.  When  we  come  to  a  writ  of  error  or  certiorari  in  the 
case  of  an  absconding  debtor,  the  statute  specially  provides 
that,  without  the  proper  bond,  the  writ "  shall  not  be  effectual ;" 
and  it  cannot  be  necessary  to  have  it  superseded  before  the 
creditors  are  at  liberty  to  proceed. 

It  is  also  said  that,  as  the  sureties  made  the  proper  affidavit  at 
the  time  the  bond  was  given,  no  subsequent  justification  was 
necessary.  But  no  copy  of  the  affidavit  was  ever  served,  and 
that  is  expressly  required  by  the  statute.  And  besides,  when 
the  statute  declares  that  the  creditor  shall  have  twenty  days 
after  notice  to  except  to  the  sureties,  and  that  the  sureties  shall 
justify  within  ten  days  after  notice  of  the  exception,  I  am  not 
prepared  to  admit  that  the  provision  can  be  satisfied  by  an  ex 
parte  justification  before  hand.  It  may  be  that  these  sureties 
could  not  have  justified  after  the  exception  was  taken  ;  or,  if 
there  had  been  no  change  in  their  circumstances,  it  is  quite 
possible  that,  after  learning  that  their  sufficiency  had  been  ques- 
tioned, they  would  not  again  have  made  the  necessary  affidavit. 
There  is  much  reason  upon  the  papers  for  believing  that  they 
were  not  good  bail. 

I  think  the  creditors  were  at  liberty  to  proceed,  and  that  the 

VOL.  IV.  5 


34         CASES  IN  THE  SUPREME  COURT. 


Jones  v.  Williams. 


circuit  judge  was  right  in  appointing  trustees.  Of  course  the 
motion  to  set  aside  the  appointment,  and  for  an  attachment 
against  Mr.  Smith,  must  be  denied. 

As  to  the  other  motion,  Mr.  Judah  must  unite  with  Mr.  Smith 
in  placing  the  $650  deposited  to  their  joint  credit  in  the  Bank 
of  New- York  at  the  disposition  of  the  trustees  for  the  bee  eat 
of  the  creditors 

Ordered  accordingly. 


JONES  vs.  WILLIAMS  and  others. 

On  a  motion  to  set  aside  a  capias  ad  respondendum  because  of  its  being  returnable 
at  a  wrong  place,  the  plaintiff  will  be  allowed  to  amend  on  payment  of  costs 
without  a  cross  motion  for  that  purpose. 

Where  the  suit  was  against  nine  defendants  who  had  appeared  by  three  different 
attorneys,  and  three  sets  of  papers  had  been  served  for  the  motion,  the  amend- 
ment was  allowed  on  payment  of  but  one  bill  of  costs. 

J.  E.  Carey,  for  the  defendants,  moved  to  set  aside  the  ca- 
pias and  subsequent  proceedings,  on  the  ground  that  the  capias, 
which  was  returnable  at  the  last  October  term,  was  made  return- 
able at  Albany  instead  of  Rochester.  There  were  nine  defen- 
dants, several  of  whom  had  employed  different  attorneys,  and 
three  sets  of  papers  were  served  for  the  motion. 

Ji.  Taber,  for  the  plaintiff,  said  this  was  a  mere  clerical  error 
arising  from  the  recent  change  in  the  place  of  holding  the  Oc- 
tober term,  and  that  the  plaintiff  ought  to  be  allowed  to  amend 
without  costs— or,  at  any  rate,  without  paying  three  bills  of 
costs. 

Carey  said  the  plaintiff  should  have  given  notice  of  a  cross 
motion  for  leave  to  amend ;  and  as  three  different  attorneys 
had  been  employed  for  the  defendants,  and  each  had  giv- 
en notice  of  this  motion  for  his  own  clients,  they  were  entitled 
to  the  costs  of  three  motions. 


ALBANY,  DECEMBER,  1842.  35 

Miller  t.  M'Cajj. 

By  the  Court,  BRONSON,  J.  It  is  now  the  settled  practice  to 
allow  trifling  mistakes  of  this  kind  to  be  amended  on  the  mo- 
tion to  set  aside  the  proceedings,  and  without  putting  the  party 
to  a  cross  motion  for  that  purpose.  As  to  costs,  the  principle 
contended  for  would  enable  these  nine  defendants  to  recover 
ninety  dollars  costs  for  an  error  of  no  great  importance.  It  is 
enough  to  allow  one  bill. 

Ordered  accordingly. 


MILLER  vs.  M'CAGG  &  HUNGER. 

Where  a  defendant  interposes  a  plea  or  notice  of  usury,  and  verifies  the  same  par. 

suant  to  the  act  of  May  15th,  1837,  (Sets.  L.  of  '37,  p.  437,  $  2,)  he  may  call 

and  examine  the  plaintiff*  without  obtaining  an  order  of  the  court  for  that  pur- 

pose. 
So,  where  different  parties  to  a  note  or  bill  are  sued  jointly  under  the  statute,  (Sess. 

L.  of  '32,  p.  490,  §  8,)  no  order  of  the  court  is  necessary  to  enable  one  of  such 

parties  to  call  and  examine  another. 
The  statute,  however,  applies  only  to  such  parties  to  a  note  or  bill  as  could  not 

be  sued  jointly  at  the  common  law ;  and  hence,  in  an  action  against  two  makers 

of  a  joint  and  several  note,   one  cannot  call  and  examine  the  other. 
Nor  can  the  action  be  severed  as  to  the  makers,  and  judgment  taken  against  one 

of  them  without  the  other ;  and  this,  whether  they  be  sued  jointly  with  endorsers 

or  not 
The  case  of  The  Bank  of  Genetee  v.  Field,  (19  Wend.  643,)  reconsidered  and 

overruled. 

ASSUMPSIT  upon  a  promissory  note,  as  follows :  "  8600. 
Hudson,  Sept.  17,  1841.  Six  months  after  date,  for  value 
rec'd,  we  jointly  and  severally  promise  to  pay  Ozias  Miller  or 
bearer  six  hundred  dollars,  with  interest.  .(Signed)  Benj. 
Munger.  J.  M'Cagg,  as  surety."  The  defendants  appeared 
and  pleaded  by  different  attorneys.  M'Cagg  gave  notice  of 
the  defence  of  usury,  and  verified  the  truth  of  his  plea.  He 
now  made  affidavit  that  his  co-defendant  Munger  and  the  plain- 
tiff would  both  be  material  and  necessary  witnesses  for  him  on 
the  trial.  On  this, 


36  CASES  IN  THE  SUPREME  COURT. 

Miller  v.  M'Cagg. 

H.  Hogeboom,  for  the  defendant  M'Cagg,  now  moved  for 
an  order  that  he  be  allowed  to  examine  his  co-defendant  Hun- 
ger and  the  plaintiff  as  witnesses  for  him  on  the  trial.  He  ci- 
ted Bank  ofGenesee  v.  Field,  (19  Wend.  643,)  also  stat.  1841, 
p.  272,  ch.  282,  amending  the  act  of  1832,  relating  to  suits 
against  several  parties  to  a  promissory  note  or  bill  of  exchange 

J.  Gaul,  Jr.  for  the  plaintiff. 

By  the  Court,  BRONSON,  J.  There  was  no  occasion  for  this 
motion  in  either  of  its  branches.  Where  the  defendant  has 
verified  his  plea  or  notice  of  the  defence  of  usury  by  affidavit, 
the  statute  has  provided  that  he  may  call  and  examine  the 
plaintiff  as  a  witness ;  (Stat.  of  1837,  p.  4§7,  §  2  ;)  and  no 
previous  order  of  the  court  is  either  necessary  or  proper.  And 
where  different  parties  to  a  note  or  bill  are  sued  jointly,  one 
of  those  parties  may  call  and  examine  another,  though  a  co- 
defendant,  in  all  cases  where  the  testimony  would  have  been 
admissible  if  the  parties  had  been  sued  separately.  (Stat.  of 
1832,  p.  490,  §  8.)  The  statute  gives  the  right,  and  it  is  com- 
plete without  any  order  of  the  court. 

There  is  a  further  objection  to  that  branch  of  the  motion 
which  relates  to  the  examination  of  the  co-defendant.  The 
statutes  to  which  we  are  referred  only  apply  to  cases  where 
different  parties  to  a  note  or  bill,  as  the  maker  and  endorser  of 
a  note,  or  the  drawer  and  acceptor  of  a  bill,  are  sued  jointly. 
Two  or  more  makers,  drawers,  acceptors  or  joint  endorsers, 
make  but  one  party  to  the  note  or  bill ;  and  when  the  suit  is 
brought  against  only  one  party,  however  numerous  may  be  the 
individuals  belonging  to  that  class,  the  action  is  at  the  common 
law,  and  the  statutes  have  nothing  to  do  with  the  case.  And 
this  is  so  where  the  undertaking  of  the  persons  sued  is  joint 
and  several,  as  well  as  where  it  is  joint  only. 

It  seems  to  be  supposed  that  whenever  the  declaration  con- 
tains nothing  but  the  money  counts,  and  a  copy  of  the  note  or 
bill  is  added,  that  it  is  a  statute  action.  But  this  is  a  mistake. 


ALBANY,  DECEMBER,  1842. 


Miller  v.  M'Cagg. 


Whether  it  is  a  statute  action  or  not  depends  on  the  fact  wheth- 
er several  parties  to  the  note  or  bill,  as  makers  and  endorsers, 
drawers  and  acceptors,  are  sued  together.  In  this  case,  both 
of  the  defendants  are  makers,  and  constitute  only  one  party  to 
the  note.  Whether  sued  jointly  or  severally,  the  action  is  at 
the  common  law  ;  and  neither  plaintiff  nor  defendant  is  entitled 
to  any  privilege  which  he  could  not  have  claimed  if  the  stat- 
utes had  never  been  passed. 

We  are  referred  to  the  Bank  of  Genesee  v.  Field,  (19  Wend. 
643,)  to  prove  that  this  is  a  statute  action.  But  there,  the  ma- 
kers and  the  endorser  of  a  promissory  note  were  sued  jointly, 
while  this  is  an  action  against  the  makers  only.  It  is  enough 
that  the  case  is  not  in  point.  But  I  have  more  than  once 
intimated  a  doubt  whether  the  case  was  rightly  decided ;  and 
on  conferring  further  with  my  brethren,  we  are  all  agree<l  that 
the  decision  cannot  be  supported.  When  the  joint  and  several 
makers  of  a  promissory  note  are  sued  together,  whether  the 
endorsers  are  joined  or  not,  the  plaintiff  has  made  his  election 
to  treat  the  contract  of  the  makers  as  joint  only,  and  he  must 
abide  by  that  election. (a)  He  cannot  sever  the  action  as  to  the 
makers,  and  take  judgment  against  one  of  them  without  the 
other.  The  statute  does  not  reach  the  case,  because  it  only 
provides  for  a  severance  as  to  different  parties  tp  the  note  ;  and 
all  of  the  makers,  though  their  promise  be  joint  and  several, 
make  but  one  party  within  the  meaning  of  the  statute. 

Motion  denied. 


(a)  See  Plainer  v.  Johnton,  (3  Hill,  476.) 


38  CASES  IN  THE  SUPREME  COURT. 


Root  v. 


TROWBRIDGE  &  GRAY  vs.  SHARP  &  SHARP. 

Where  two  defendants  appeared  and  pleaded  by  different  attorneys,  and  a  motion 
for  judgment  as  in  case  of  nonsuit  was  afterwards  made  by  each,  on  separate  pa 
pers ;  held,  that  but  one  bill  of  costs  should  be  allowed  on  granting  the  motion, 
it  appearing  to  be  a  case  in  which  the  defendants  must  unite  in  the  application. 

K.  Miller ,  for  the  defendant,  moved  for  judgment  as  in  case 
of  nonsuit  for  not  noticing  and  trying  the  cause  at  the  first  cir- 
cuit after  issue  joined.  The  defendants  had  appeared  and  plead- 
ed by  different  attorneys,  and  two  sets  of  papers  were  made  and 
served  for  the  motion,  though  it  was  admitted  that  this  was  a 
case  where  both  defendants  must  unite  in  making  the  motion. 

I.  Harris,  for  the  plaintiff,  said  the  defendants  were  only  en- 
titled to  one  bill  of  costs  for  making  the  motion,  and  to  that, 

BRONSON,  J.  agreed,  and  it  was  ordered  accordingly. 


ROOT  vs. 


Though,  upon  a  cause  being  called  at  the  circuit  in  its  regular  order  on  the  calen- 
dar, the  defendant  consent,  for  the  plaintiffs  accommodation,  that  it  be  set 
down  for  trial  at  a  subsequent  day,  and  the  cause  is  not  again  reached,  the  de- 
fendant will  nevertheless  be  entitled  to  judgment  as  in  case  of  nonsuit. 

Otherwise,  where  the  cause  is  passed  for  the  defendant's  accommodation,  or  a 
mutual  agreement  is  made  to  try  the  cause  on  a  particular  day,  and  it  is  passed 
on  the  calendar  before  the  day  arrives.  Per  BRONSON,  J. 

A.  Taber,  for  the  defendant,  moved  for  judgment  as  in  case 
of  nonsuit,  for  not  trying  at  the  Albany  circuit  pursuant  to 
notice.  When  the  cause  was  reached  on  the  calendar  the  de- 
fendant was  ready  for  trial,  but  for  the  accommodation  of  the 
plaintiff,  who  was  not  ready,  consented  to  have  the  cause  set 
down  for  a  subsequent  day.  When  that  day  arrived  the  de- 


ALBANY,  DECEMBER,  1842. 


Camp  r>.  The  Lumbermen's  Bank. 


fendant's  counsel  again  consented  to  postpone  to  a  subsequent 
day  for  the  accommodation  of  the  plaintiff,  whose  witnesses  had 
not  arrived.  Owing  to  the  amount  of  criminal  business,  the 
cause  was  not  again  called. 

H.  H.  Martin,  for  the  plaintiff.  As  the  defendant  consented 
to  the  postponement,  he  cannot  now  move  for  judgment. 

By  the  Court,  BRONSON,  J.  If  the  cause  had  been  passed  for 
the  accommodation  of  the  defendant,  or  if  there  had  been  a 
mutual  agreement  that  the  cause  should  not  be  tried  before  a 
particular  day,  and  it  had  been  passed  before  the  day  arrived, 
the  defendant  would  not  be  entitled  to  judgment.  But  here 
the  defendant  was  ready,  and  only  consented  to  have  the  cause 
passed  for  the  accommodation  of  the  plaintiff,  who  had  two 
opportunities  to  try  it.  The  motion  must  be  granted  unless 
the  plaintiff  stipulates  and  pays  costs. 

Ordered  accordingly. 


CAMP  &  CAMP  vs.  THE  LUMBERMEN'S  BANK. 

This  court  has  no  power  to  compel  an  individual  to  furnish  the  certificate  required 
bj  the  third  section  of  the  "  act  to  amend  the  law  in  relation  to  suits  against  for. 
eign  corporations ;"  (Seat.  L.  of  '42,  p.  227 ;)  and  this,  though  he  be  an  attorney 
of  the  court. 

Nor  can  the  officers  of  a  private  corporation  be  thus  compelled  to  furnish  the  cer- 
tificate. 

If  the  person  applied  to  refuse  to  give  the  certificate,  the  remedy  of  the  plaintiff,  it 
seems,  is  by  an  action  at  law,  or  a  bill  of  discovery  in  equity.  Per  BRONSON,  J. 

ON  serving  an  attachment  against  the  defendants,  who  are  a 
foreign  corporation,  the  sheriff  of  the  county  of  Chautauque 
called  on  Abner  Hazletine,  Esq.  an  attorney  of  this  court, 
delivered  him  a  copy  of  the  writ,  and  required  from  him  a  cer- 
tificate in  relation  to  certain  choses  in  action  which  were  alleg- 


40  CASES  IN  THE  SUPREME  COURT. 

Camp  v.  The  Lumbermen's  Bank. 

ed  to  be  in  his  hands,  and  to  be  the  property  of  the  bank.  Mr. 
Hazletine  gave  the  sheriff  a  certificate  specifying  several  choses 
in  action  in  his  possession  which  were  the  property  of  the 
bawk,  and  as  to  others  he  declined  to  make  any  disclosures, 
on  the  ground  that  he  could  not  do  it  without  a  breach  of 
the  confidential  relation  existing  between  himself  and  the  bank 
as  attorney  and  client. 

A.  Taber,  for  the  plaintiffs,  now  moved  for  an  order  that  Mr 
Hazletine  furnish  the  required  certificate. 

S.  H.  Hammond  opposed  the  motion. 

By  the  Court,  BRONSON,  J.  It  will  not  be  necessary  to  con- 
sider the  case  in  reference  to  the  confidential  relation  of  attor- 
ney and  client  which  is  said  to  exist  between  Mr.  Hazletine 
and  the  bank.  If  the  plaintiffs  have  a  right  to  the  discovery 
which  they  seek,  I  think  they  cannot  attain  their  object  in  this 
form  of  proceeding. 

By  the  act  of  the  last  session,  the  shares  which  any  foreign 
corporation  may  hold  in  any  bank  &c.,  and  all  trust  property, 
real  or  personal,  and  the  funds,  deposits,  moneys  or  credits,  held 
by  or  due  from  any  bank,  corporation  or  individual  in  this 
state,  for  any  foreign  corporation,  are  subjected  to  attachments 
in  suits  at  law  against  such  foreign  corporation.  (Stat.  1842, 
p.  227,  ^  1.)  The  attachment  is  to  be  executed  by  leaving  an 
attested  copy  with  the  cashier  of  the  bank,  the  secretary  of  the 
insurance  or  other  company,  or  with  the  individual  holding  such 
trust  property.  $  2.)  On  the  application  of  the  sheriff, "  the 
cashier,  secretary,  or  clerk,  or  individual  shall  furnish  him  with 
a  certificate  under  his  hand,  in  his  official  capacity,  if  he  be  an 
officer,"  of  the  property  "  held  by  such  company,  corporation 
or  individual  for  the  benefit  of  such  foreign  corporation." 
(§  3.)  Although  the  duty  of  making  the  certificate  is  express- 
ly enjoined,  no  provision  has  been  made  for  enforcing  perform- 
ance, and  I  see  no  principle  upon  which  we  can  order  an  indi- 


ALBANY,  DECEMBER,  1842.  41 

Camp  v.  The  Lumbermen's  Bank. 

vidual,  or  the  officers  of  a  private  corporation,  to  do  such  an 
act.  Mr.  Hazletine  may  be  liable  to  an  action  for  withholding 
the  certificate,  or  the  plaintiffs  may  have  a  discovery  in  a  court 
of  equity  ;  but  I  think  they  cannot  attain  their  object  in  this 
form. 

It  is  of  no  importance  that  Mr.  Hazletine  is  an  attorney  of  this 
court.  He  is  not  charged  with  any  violation  of  the  duty  which 
he  owes  to  his  clients ;  but  as  to  this  matter  he  stands  before 
us  like  any  other  individual,  and  if  we  can  order  him  to  make 
the.  certificate,  we  could  make  the  like  order  upon  any  other 
man  who  had  refused  to  make  discovery  concerning  property 
of  the  defendants  supposed  to  be  in  his  hands. 

An  officer  of  the  court  will  sometimes  be  ordered  to  do  a 
particular  act  in  relation  to  some  proceeding  in  court,  and  per- 
formance will  be  enforced  by  attachment.  A  sheriff  may  be 
required  to  return  a  writ,  or  an  attorney  to  pay  over  money 
which  he  has  collected  for  his  client.  And,  where  there  is  no 
prior  proceeding  in  court,  a  public  officer  will  sometimes  be  re- 
quired by  mandamus  to  perform  a  duty  enjoined  upon  him  by 
law.  But  I  am  not  aware  of  any  principle  which  will  warrant 
us  in  acting  in  this  manner  upon  individuals  who  sustain  no 
offcial  relation  to  the  court  or  public,  or  upon  the  officers  of  a 
private  corporation.  "^ 

Motion  denied. 


VOL.  IV. 


42        CASES  IN  THE  SUPREME  COURT. 


Matter  of  Dakin. 


Matter  of  S.  D.  DAKIN,  an  attorney  of  this  court. 

In  order  to  give  the  right  of  proceeding  summarily  against  an  attorney  to  compe. 
the  payment  over  of  money  in  his  hands,  it  is  not  essential  that  he  should  have 
received  the  money  in  any  suit  or  legal  proceeding,  or  that  he  should  have  been 
employed  to  commence  legal  proceedings.  Per  BRONSON,  J. 

It  is  enough  if  the  money  was  received  by  the  attorney  in  his  professional  charac- 
ter ;  as,  where  the  demand  on  which  he  received  it  was  left  with  him  under  in- 
structions to  call  for  payment,  or  obtain  better  security,  but  without  any  direc- 
tions to  sue.  Per  BRONSOX,  J. 

Otherwise,  if  the  circumstances  be  such  as  not  to  afford  a  presumption  that  he  was 
entrusted  in  the  transaction  by  reason  of  his  professional  character. 

On  an  application  for  an  order  that  D.,  an  attorney,  pay  over  moneys  received  by 
him  for  R.,  it  appeared  that  L.,  who  was  a  land-agent,  took  a  bond  and  mort- 
gage in  favor  of  R.  and  sent  him  the  bond  but  retained  the  mortgage  for  the 
purpose  of  receiving  payments  on  it ;  that  several  years  afterward,  L.,  with  the 
assent  of  those  for  whom  he  acted,  among  whom  was  R.,  transferred  his  land- 
agencies  to  D.  who  attended  chiefly  to  that  kind  of  business ;  that  D.  never  had 
the  bond  in  his  possession,  nor  had  he  instituted  proceedings  to  collect  the  mort- 

\  gBg6*  or  been  instructed  to  do  so  ;  but  he  received  several  sums  of  money  on  the 
mortgage  and  refused  to  pay  them  over,  though  demanded.  Held,  not  a  case 
for  the  summary  interference  of  the  court,  and  the  motion  was  therefore  denied. 

PRIOK  to  1831,  Richard  R.  Lansing,  who  was  an  attorney  at 
law,  resided  atUtica  where  he  kept  a  land-office,  and  acted  as  the 
agent  of  several  land-owners,  and  among  others  he  acted  in 
such  land-agency  for  the  executors  of  Simon  Remsen,  and  took 
a  bond  and  mortgage  for  them  from  one  Anthony  Bradt  in  the 
year  1827,  for  securing  the  payment  of  82400.  The  bond  was 
transmitted  to  the  executors  in  the  city  of  New- York,  but  the 
mortgage  was  retained  by  Mr.  Lansing  for  the  purpose  of  re- 
ceiving payments  upon  it.  In  1831,  Mr.  Lansing  removed 
from  Utica,  and  on  that  occasion  transferred  his  land-agencies, 
with  the  assent  of  his  principals,  including  the  executors  of 
Remsen,  to  Samuel  D.  Dakin,  who  resided  and  kept  an  office  at 
Utica  as  an  attorney  at  law.  He  did  very  little  business  as  an 
attorney,  and  the  last  suit  in  which  he  was  concerned  was  en- 
tered in  his  law  register  in  August,  1836.  His  principal  busi- 
ness was  that  of  a  land-agent,  for  which  he  was  compensated 


ALBANY,  DECEMBER,  1842.  43 

Matter  of  Dakin. 

by  his  employers  by  a  commission  of  five  per  cent,  on  the  mo- 
neys received  and  paid  over.  He  kept  a  book  in  which  the 
moneys  received  in  the  course  of  his  agency  were  entered  to 
the  credit  of  the  several  persons  to  whom  they  belonged.  In 
that  book  the  moneys  received  from  Bradt  were-  entered.  He 
never  had  the  bond  of  Bradt  in  his  possession,  and  was  never 
instructed  to  institute  any  proceedings  either  at  law  or  equity 
for  the  collection  of  the  money,  nor  did  he  ever  institute  any 
such  proceedings.  He  received  payments  from  Bradt  on  the 
mortgage  from  time  to  time,  the  first  payment  being  in  April, 
1834,  and  the  last  in  May,  1839,  when  the  mortgage  was  fully 
paid.  Of  the  moneys  thus  received,  about  $1200,  including 
interest,  still  remains  in  his  hands,  and  he  has  neglected  to  pay 
it  over  on  demand  made,  alleging  as  his  excuse  that  he  is  in- 
solvent. Both  of  the  executors  of  Remsen  are  dead,  and  Ben- 
jamin W.  Strong  is  now  administrator  of  Remsen  with  the  will 
annexed,  and  as  such  claims  the  money  in  question.  Mr.  Strong 
in  his  affidavit  stated  that  he  had  no  doubt  the  executors  of 
Remsen  employed  and  confided  in  Dakin  on  account  of  his  pro- 
fessional character  and  standing  as  an  attorney  of  this  court ; 
and  that  he  believed  Dakin  prosecuted  some  demands  for 
the  executors  in  his  professional  character.  All  this  was  very 
fully  denied  by  Mr.  Dakin,  and,  as  to  the  leading  features  of  the 
case,  he  was  confirmed  by  two  witnesses. 

R.  W,  Peckham,  on  behalf  of  Mr.  Strong,  the  administrator, 
moved  for  an  order  that  Dakin  pay  over  the  money,  or  that  an 
attachment  issue  against  him.  He  cited  and  commented  on  the 
following  cases :  Ex  parte  Stoats,  (4  Cowen,  76 ;)  Matter  of 

Aitkin,  (4  Barn.  #  MA.  47 ;)  De  Woolfe  v. ,  (2  Chit.  R. 

68  ;)  Ex  parte  Corpus  Christi  College,  (6  Taunt.  105  ;)  Cocks 
v.  Harman,  (6  East,  404  ;)  Matter  of  Lowe,  (8  East,  237 ;)  2 
Petersd.  M.}  613  ;  Matter  of  Knight,  (1  Bing.  91.)  (a) 


(a)  A  better  report  of  thii  case  will  bo  found  in  7  Moore.  437,  rum.  Ex  partt 
Hall 


44 


CASES  IN  THE  SUPREME  COURT. 


Matter  of  Dakin. 


S.  J.  Cowen,  contra. 

By  the  Court,  BRONSON,  J.  The  summary  jurisdiction  exer- 
cised by  the  courts  for  the  purpose  of  compelling  attorneys  to 
perform  their  duty  to  clients,  is  not  only  just  in  itself,  but  it 
exerts  a  wholesome  influence  upon  the  whole  body  of  the  legal 
profession.  If  the  client  were  driven  to  the  dilatory  and  some- 
times inefficient  remedy  by  action  when  the  attorney  improper- 
ly neglects  to  pay  over  money,  a  few  unworthy  members  of 
the  bar  would  bring  6dium  upon  all  the  rest. 

It  is  not  essential  to  th'e  exercise  of  this  summary  remedy 
that  the  attorney  should  have  received  the  money  in  any  suit 
or  legal  proceeding,  or  that  he  should  have  been  employed  or 
instructed  to  commence  legal  proceedings.  It  is  enough  that 
the  money  was  received  in  his  character  of  attorney,  as  where 
a  dema-nd  is  left  with  him  with  instruction  to  call  for  payment, 
or  obtain  better  security,  but  without  any  directions  to  sue. 
When  the  attorney  is  also  engaged  in  other  business,  and  the 
particular  character  in  which  he  was  retained  does  not  affirma- 
tively appear,  it  may  be  inferred  from  the  nature  of  the  em- 
ployment, and  the  other  circumstances  of  the  case.  In  De 
Woolfe  v. ,  (2  Chit.  R.  68,)  Bayley,  J.  said  the  recent  doc- 
trine was,  that  whenever  a  person  had  been  employed  in  con- 
sequence of  his  being  an  attorney,  though  not  in  an  action, 
the  court  would  interfere  summarily  to  compel  him  to  do  what 
was  right.  In  that  case  the  attorney  had  received  money  under 
a  power  which  described  him  as  a  counsellor  and  attorney,  and 
the  court  said,  it  was  otherwise  manifest  that  the  employers  con- 
templated the  party's  professional  character ;  and  he  was  ordered 
to  account  and  pay  over  the  money.  The  rule  was  well  stated 
by  Abbott,  Ch.  J.  in  the  Matter  of  Mtkin,  (4  Barn.  &  Aid. 
47.)  "  Where,"  he  says,  "  an  attorney  is  employed  in  a  matter 
wholly  unconnected  with  his  professional  character,  the  murt 
will  not  interfere  in  a  summary  way  to  compel  him  to  execute 
faithfully  the  trust  reposed  in  him.  But  where  the  employ- 


ALBANY,  DECEMBER,  1842. 


Matter  of  Dakin. 


mcnt  is  so  connected  with  his  professional  character  as  to  af- 
ford a  presumption  that  his  character  formed  the  ground  of  his 
employment  by  the  client,  there  the  court  will  exercise  this  ju- 
risdiction." The  defence  of  the  attorney  in  that  case  was  put 
wholly  on  the  ground  that  he  had  not  been  employed  to  prose- 
cute any  suit ;  and  as  that  position  was  untenable,  the  motion 
was  granted.  In  Ex  parte  Stoats,  (4  Cotoen,  76,)  a  like  ob- 
jection by  the  attorney  was  overruled. 

In  this  case  there  seems  to  hare  been  no  written  power,  and 
as  the  executors  are  dead,  we  cannot  have  their  statement  con- 
cerning the  nature  of  the  retainer.  Mr.  Strong  believes  that 
Mr.  Dakin  prosecuted  some  other  demands  for  the  executors  in 
his  professional  character.  If  that  were  so,  it  would  not  be 
conclusive  without  showing  that  those  demands  were  received 
upon  a  similar  retainer  with  the  Bradt  mortgage.  But  the  fact 
that  Mr.  Dakin  was  ever  employed  or  acted  for  the  executors 
in  a  professional  character  is  fully  denied.  In  addition  to  this, 
Mr.  Lansing  swears  that  he  was  the  land-afent  of  the  execu- 
tors in  respect  to  certain  real  estate,  and  that  he  took  this 
mortgage  in*the  course  of  that  agency,  which  was  subsequent- 
ly transferred  to  Mr.  Dakin.  And  Mr.  Dakin  and  his  clerk, 
Mr.  Gillmore,  both  swear  that  the  money  in  question  was  re- 
ceived as  such  agent,  and  in  no  other  character  or  capacity. 
There  is,  then,  not  only  the  absence  of  any  direct  proof  that 
the  money  was  received  as  an  attorney,  but  there  is  direct 
proof  to  the  contrary. 

The  fact  that  Mr.  Dakin  was  an  attorney,  may  hare  had 
some  influence  upon  the  executors  in  selecting  him  as  their 
agent ;  but  there  is  no  direct  proof  that  such  was  the  case,  and 
the  nature  of  the  business  was  not  such  as  to  raise  the  pre- 
sumption that  he  was  retained  in  his  professional  character. 
Such  agencies  for  land-owners  have  no  necessary  connection 
with  the  business  of  an  attorney,  and  are  most  commonly  un- 
dertaken by  men  who  do  not  belong  to  the  legal  profession. 

On  the  whole,  we  think  a  case  has  not  been  made  out  for 


46  CASES  IN  THE  SUPREME  COURT. 

Wilkinson  ».  Johnson. 

exercising  this  summary  jurisdiction  over  Mr.  Dakin  as  an  offi- 
cer of  the  court. 

Motion  denied. (6) 

(6)  In  re  G.  Chitty,  (2  Dowl.  Pr.  Cos.  421,)  a  rule  was  moved  for,  calling  on 
Mr.  Chitty,  an  attorney,  to  shew  cause  why  he  should  not  give  up  to  Mr.  Dow- 
land  a  promissory  note  for  300Z.,  and  a  policy  of  insurance  on  the  life  of  Mr.  Dow. 
land.  The  affidavit  on  which  the  motion  was  founded  stated  that  in  1829,  Mr. 
Chitty  lent  Mr.  Dowland  300Z.  on  the  security  of  a  note  for  that  amount  and  a 
policy  of  insurance  on  the  life  of  the  borrower.  In  1831,  Mr.  Chitty  sold  for  Mr. 
Dowland  a  reversionary  interest  in  a  sum  of  7000L  From  the  proceeds  of  this 
•ale,  Mr.  Chitty  paid  himself  the  300Z.  with  interest  and  expenses,  and  the  balance 
to  Mr.  Dowland.  On  this  settlement,  the  latter  required  the  note  and  policy  to  bo 
given  up  to  him,  when  Mr.  Chitty  said  he  had  left  the  note  at  home,  but  would 
either  forward  it  the  next  day  or  destroy  it.  The  note  and  policy  were  not  sent, 
and  nothing  further  was  heard  from  them  until  sometime  afterwards,  when  the  per- 
•onal  representatives  of  a  banker  at  Shaftsbury,  where  Mr.  Chitty  lived,  applied  to 
Mr.  Dowland  for  the  amount  of  the  note,  and  threatened  to  enforce  their  claim  by 
action.  Then  it  appeared  that  Mr.  Chitty  had  paid  the  note  into  his  bankers  as  a 
security  for  money  advanced  to  him. 

PER  CUKJAM.  We  flunk  it  would  be  carrying  the  rule  further  than  the  authori- 
ties warrant,  if-  we  were  to  grant  this  motion.  The  misconduct  of  Mr.  Chitty  in 
not  returning  the  note  was  not  misconduct  in  his  employment  as  an  attorney,  the 
transaction  between  the  parties  being  not  that  of  an  attorney  and  client,  but  of 
borrower  and  lender.  Rule  refused. 


WILKINSON  vs.  JOHNSON. 
THE  SAME  vs.  THE  SAME. 

On  moving  for  a  consolidation  of  actions  it  is  not  enough  for  the  defendant  to  show 
that  the  causes  of  action  are  such  as  may  be  joined  in  one  declaration  ;  but  it 
must  affirmatively  appear,  in  addition,  that  no  defence  is  intended  in  either  of 
the  suite,  or  that  the  questions  which  will  arise  in  them  are  substantially  the 
same. 

It  is  not  an  objection  to  a  consolidation  that  the  actions  are  based  on  different 
transactions,  provided  no  defence  be  intended  in  either,  and  the  rule  is  only  ask- 
ed  to  avoid  the  expense  of  entering  up  several  judgments.  Per  BRONSON,  J. 

Nor  will  the  rule  in  such  case  be  refused  even  though  the  suits  are  to  be  defend- 
ed,  provided  the  questions  to  be  tried  are  identical ;  as  where  the  suite  are 
brought  upon  distinct  contracts  originating  in  different  transactions,  and  the  de. 


ALBANY,  DECEMBER,  1842.  47 


Wilkinson  «.  Johnson. 


fendant  does  not  deny  the  validity  of  the  contracts,  but  sets  up  some  matter  in 
discharge,  going  to  the  whole  of  the  plaintiff's  demand— e.  g.  payment,  release, 
accord  and  satisfaction,  insolvency,  bankruptcy,  &c.  Per  BKONSO.N,  J. 

CONSOLIDATION.  These  two  suits  were  commenced,  one  on 
the  first,  and  the  other  on  the  second  day  of  September  last. 
Both  actions  were  assumpsit,  and  it  appeared  from  the  bills  of 
particulars  of  the  plaintiff's  demands  that  one  action  was 
brought  for  money  had  and  received  by  the  defendant  to  the 
plaintiff's  use  in  the  year  1837,  and  the  other  action  was 
brought  upon  a  written  undertaking  of  the  defendant  to  pay 
the  plaintiff  $1000  for  negotiating  the  sale  of  a  bond  and  mort- 
gage in  the  year  1838.  The  defendant  swore  to  a  defence  on 
the  merits  in  both  suits,  but  did  not  state  the  nature  of  the  de- 
fence in  either  case. 

E.  F.  Smith,  for  the  defendant,  moved  for  an  order  consoli- 
dating the  two  actions.  He  cited  3  Wend.  441 ;  Grah. 
Prac.  501. 

M.  T.  Reynolds,  opposed  the  motion,  and  cited  9  John.  262  ; 
19  Wend.  23. 

By  the  Court,  BRONSON,  J.  On  moving  for  a  consolidation 
it  is  not  enough  for  the  defendant  to  show  that  the  causes  of 
action  in  the  two  suits  are  such  as  may  be  joined  in  one  decla- 
ration. It  must  appear  in  addition,  that  no  defence  is  intended 
in  either  of  the  suits,  or  that  the  questions  which  will  arise  are 
substantially  the  same  in  both.  (Dunning  v.Bank  of  jiuburn, 
19  Wend.  23.)  Although  the  two  actions  may  be  based  upon 
different  transactions,  yet  if  no  defence  is  intended,  and  the 
consolidation  is  only  asked  for  the  purpose  of  avoiding  the  ex- 
pense of  entering  up  several  judgments,  there  cannot  often  be 
a  good  objection  against  granting  the  motion.  But  when  a  de- 
fence is  to  be  made  in  one  or  both  of  the  suits,  very  different 
considerations  arise.  If  only  one  of  the  actions  is  to  be  defend- 


48  CASES  IN  THE  SUPREME  COURT. 

Wilkinson  r.  Johnson. 

ed,  there  can  be  no  good  reason  for  delaying  the  plaintiff  in 
the  other.  His  acknowledged  right  in  the  one  case  should  not 
be  withheld  until  another  matter,  which  is  in  controversy  be- 
tween the  parties,  can  be  determined.  It  does  not  occur  to 
me  that  there  can  be  any  case  for  a  consolidation  where  there 
is  a  defence  in  one  action,  and  none  in  the  other. 

When  both  actions  are  to  be  defended  they  may  very  proper- 
ly be  consolidated,  where  the  questions  to  be  tried  will  be  sub- 
stantially the  same  in  both.  The  questions  may  often  be  iden- 
tical ;  as  where  the  suits  are  brought  upon  different  contracts 
growing  out  of  the  same  transaction,  and  the  defence  is,  that  by 
reason  of  fraud,  usury,  want  of  consideration,  or  the  like,  there 
never  was  a  valid  contract ;  or  where  the  consideration  tipon 
which  the  contracts  were  made  has  wholly  failed.  So  too,  the 
questions  to  be  tried  may  be  identical  although  the  contracts 
were  based  upon  different  transactions  j  as  where  the  defendant 
does  not  deny  the  validity  of  the  contracts,  but  sets  up  some 
matter  in  discharge  of  the  actions,  as  payment,  release,  accord 
and  satisfaction,  insolvency,  bankruptcy,  and  the  like,  going 
to  the  whole  of  the  plaintiff's  demands.  In  such  cases  the 
matter  in  controversy  between  the  parties  may  as  well  be  set- 
tled in  one  action  as  in  several ;  and  a  consolidation  will  not 
only  result  in  a  saving  of  time  and  expense  to  the  parties,  but 
it  will  relieve  courts  and  j.urors  from  the  useless  burden  of 
twice  investigating  the  same  matter. 

But  when  different  questions  are  to  be  litigated  in  the  two 
actions,  a  motion  for  consolidation,  which  is  always  addressed 
to  the  discretion  of  the  court,  ought  not  to  be  granted.  The 
venue  and  the  witnesses  may  be  different  in  the  two  suits,  and 
the  investigation  upon  one  trial  of  several  transactions  which 
have  no  connection  with  each  other,  would  tend  to  embarrass 
both  court  .and  jury,  and  might  result  in  a  verdict  which  would 
not  do  complete  justice  to  the  parties.  It  is  true  that  the  costs 
may  be  increased  by  having  two  trials.  But  the  parties  stand 
upon  equal  ground.  Both  insist  that  they  are  right,  and  each 
goes  on  at  the  peril  of  paying  costs  if  he  fails.  In  one  respect 


ALBANY,  DECEMBER,  1842. 


Wilkinaon  t>.  Johnson. 


the  defendant  has  the  advantage  in  leaving  the  suits  to  proceed 
separately.  If  he  succeeds  in  either,  he  will  recover  the  costs 
of  that  suit,  although  he  may  fail  in  the  other.  But  if  the  ac- 
tions are  consolidated,  and  the  plaintiff  succeeds  as  to  either  of 
his  demands,  though  he  fails  in  the  other,  he  will  recover 
costs ;  and  thus  the  expenses  of  the  whole  litigation  will  fall 
upon  the  defendant,  notwithstanding  his  success  as  to  one  half 
of  the  controversy. 

The  papers  on  which  this  motion  is  made  are  defective  in 
not  showing  that  the  same  question  or  questions  are  to  be  liti- 
gated in  both  actions.  A  defence  on  the  merits  is  sworn  to  in 
each,  but  the  nature  of  the  defence  is  not  disclosed.  In  one 
suit  it  may  be  a  denial  that  any  valid  contract  was  ever  made, 
while  in  the  other  the  original  liability  may  be  admitted,  and 
some  matter  may  be  set  up  in  discharge  of  the  action.  We 
see  that  the  plaintiff  sues  upon  distinct  contracts  springing  out 
of  transactions  which  have  no  connection  with  each  other. 
But  if  that  did  not  appear,  the  defences  and  the  questions  to  be 
litigated  in  the  two  suits  may  be  entirely  different.  It  is  al- 
ways incumbent  on  the  moving  party  to  make  out  a  prima 
facie  case.  If  he  asks  for  a  consolidation  where  a  defence  is 
to  be  made,  he  should  state. enough  of  the  nature  of  the  actions 
and  the  defence  to  show  that  both  suits  will  turn  upon  the  same 
question.  The  defendant  has  fallen  far  short  of  satisfying 
that  rule. 

Motion  denied. 


VOL.  IV. 


50  CASES  IN  THE  SUPREME  COURT. 

Stanley  t>.  Millard. 


STANLEY  and  others  vs.  MILLARD. 

A  bill  of  particulars  furnished  pursuant  to  a  judge's  order,  containing  several 
charges  for  cash,  without  stating  whether  the  money  was  lent  to,  paid  out  for,  ot 
received  by  the  defendant,  is  insufficient. 

So  of  a  bill  containing  charges  for  notes,  giving  the  amount  of  each,  without  any 
other  description. 

So  of  a  bill  containing  items  for  goods  sold  &c.,  giving  dates  and  sums  with  par- 
ticularity,  and  then  adding :  "  The  same  items  as  above  in  every  respect  in  each 
year,  and  on  every  day  of  the  same,  (Sundays  and  fourth  of  July  exceptcd,) 
from  Sept.  1st,  1838,  to  Jan'y  let,  1840." 

In  general,  where  a  bill  of  particulars  furnished  under  an  order  is  insufficient,  the  par- 
ty should  apply  to  a  judge  at  chambers  for  a  further  order ;  and  if  a  second  in- 
sufficient  bill  be  delivered,  the  party  may  then  apply  to  the  court. 

But  if  the  first  bill  be  so  clearly  evasive  and  unsatisfactory  as  to  show  that  the  par- 
ty delivering  it  did  not  intend  to  comply  with  the  judge's  order,  the  opposite  par- 
ty may  then  move  the  court  at  once,  without  obtaining  a  second  order  at 
chambers. 

BILL  of  particulars.  The  declaration  contained  the  common 
counts  in  assumpsit.  The  defendant  obtained  and  served  a 
judge's  order  that  the  plaintiffs  deliver  a  bill  of  the  particulars 
of  their  demand  on  or  before  the  7th  day  of  October,  or  that, 
they  show  cause  &c.  No  cause  being  shown,  the  order  was 
made  absolute  that  the  plaintiffs  deliver  a  bill  by  the  12th  of 
October.  On  the  llth  of  October  the  plaintiffs  delivered  a 
bill  in  wrhich  the  defendant  was  charged,  (giving  dates  and  sums 
with  particularity,)  with  goods  sold,  .money,  notes,  and  various 
other  items,  amounting  to  several  thousand  dollars.  Then  fol- 
lowed these  words — "  The  same  items  as  above  in  every  respect 
in  each  year,  and  on  every  day  of  the  same,  (Sundays  and 
fourth  of  July  excepted,)  from  September  1st,  1838,  to  January 
1st,  1840."  After  this  followed  other  items,  with  dates,  to  the 
amount  of  several  thousand  dollars ;  and  the  whole  was  con- 
cluded with  these  words — "  The  same  items  in  every  respect 
as  above  in  each  year  and  every  day  of  the  year,  (Sundays  ex- 
cepted,) from  January  1st,  1840,  to  October  1st,  1842."  On 
an  affidavit  that  the  bill  was  false  and  evasive — 


ALBANY,  DECEMBER,  1842.  51 

Stanley  r.  Millard. 

/.  A.  Millard,  in  pro.  per.,  now  moved  for  judgment  of 
non  pros.  He  cited  Purdy  v.  Warden,  (18  Wend.  671  j) 
Barnes  v.  Henshaw,  (21  id.  426.) 

J.  D.  Willard,  for  the  plaintiffs,  read  an  affidavit  that  the 
bill  was  delivered  in  good  faith.  He  cited  Humphrey  v.  Cot- 
tleyou,  (4  Cowen,  54  j)  Goodrich  v.  James,  (1  Wend.  289  j) 
GraA.  Prac.  518. 

.By  Me  Court,  BRONSON,  J.  This  is  not  a  sufficient  bill  of 
particulars.  It  contains  several  charges  for  "  cash"  in  different 
sums,  from  two  dollars  up  to  more  than  two  thousand.  But 
whether  it  was  money  lent  to,  or  paid  out  for  the  defendant, 
or  whether  it  was  money  received  by  him  to  the  use  of  the 
plaintiffs  does  not  appear.  The  defendant  is  also  charged  with 
"  one  note  $1000,"  another  note  of  the  same  amount,  and  "  one 
note  $500."  Whether  these  notes  were  made  by  the  defen- 
dant or  by  some  one  else,  or  whether  they  were  sold  to  the  de- 
fendant, or  delivered  to  him  for  collection,  is  not  stated.  This 
is  not  the  proper  way  to  prepare  a  bill  of  particulars.  It  does 
not  give  the  party  the  information  which  he  has  a  right  to  de- 
mand. 

But  the  worst  features  in  the  bill  are  the  general  cla'uses  in 
which  the  plaintiffs,  who  are  merchants  or  manufacturers  and 
keep  books  of  account,  claim  each  and  all  of  the  items  in  the 
bill  on  every  day,  except  Sundays  and  the  fourth  of  July,  in  a 
period  of  more  than  four  years.  They  claim  several  millions 
of  dollars  in  a  case  where  the  true  amount  probably  does  not 
exceed  a  few  hundreds,  and  where  the  defendant  insists  that  a 
belance  is  due  to  him..  This  is  not  a  fair  compliance  with  the 
judge's  order.  > 

As  a  general  rule,  when  the  bill  is  not  sufficient,  the  party 
should  apply  to  a  judge  at  chambers,  who  will  make  an  or- 
der for  further  or  better  particulars  ;  and  if  a  second  insuffi- 
cient bill  is  delivered,  the  party  demanding- it  may  then  apply 
to  the  court.  But  where  the  first  bill  is  so  clearly  evasive  and 


52  CASES  IN  THE  SUPREME  COURT. 

Reynolds  r.  Fountain. 

unsatisfactory  as  to  show  that  the  party  delivering  it  did  not 
intend  to  comply  with  the  judge's  order,  the  other  party  may 
move  the  court  at  once,  without  obtaining  a  second  order  at 
chambers.  (Purdy  v.  Warden,  18  Wend.  671.)  Although 
this  bill  is  clearly  insufficient,  I  am  satisfied  from  the  affidavits 
that  no  wrong  was  actually  intended.  The  plaintiffs  should 
therefore  be  allowed  to  deliver  further  and  better  particulars 
of  their  demand  on  payment  of  the  costs  of  this  motion. 

Ordered  accordingly. 


REYNOLDS  vs.  FOUNTAIN,  adm'r,  &c.  • 

Where  judgment  as  in  case  of  nonsuit  for  not  noticing  a  cause  for  hearing  before 
referees  is  set  aside  on  payment  of  costs,  the  plaintiff  must  notice  the  cause  for 
hearing  immediately ;  and  if  he  fail  to  do  so,  the  defendant  may  enter  his  de- 
fault and  perfect  a  second  judgment,  without  serving  a  new  notice  under  the 
44th  rule. 

If  the  plaintiff  need  time  to  bring  on  the  hearing,  he  should  ask  it  when  the  mo- 
tion to  set  aside  the  judgment  is  made,  and  have  the  allowance  inserted  in  the 
order.  „ 

The  same  rule  prevails  where  a  default  for  not  pleading  is  set  aside.  If  the  defen. 
dant  do  not  plead  immediately,  another  default  may  be  entered  without  giving  a 
new  notice  or  entering  a  new  rule.  Per  BRONSON,  J. 

THIS  cause  was  referred  in  April,  1841.  In  November  of 
that  year  the  defendant  served  notice,  pursuant  to  rule  44, 
requiring  the  plaintiff  to  notice  the  cause  for  a  hearing  within 
twenty  days,  or  elect  to  discontinue  and  pay  costs.  The  plain- 
tiff having  neglected  to  proceed,  the  defendant,  in  December 
following,  Centered  a  rule  for,  and  perfected  judgment  as  in 
case  of  nonsuit,  pursuant  to  the  aforesaid  rule.  On  the  5th 
of  February,  1842,  the  court,  on  the  plaintiff's  motion,  made  an 
order  that  the  judgment  be  set  aside  on  payment  of  costs ;  but 
no  further  directions  were  given.  The  costs  were  paid,  but 
the  plaintiff  took  no  measures  to  bring  on  the  hearing.  The 


ALBANY,  DECEMBER,  1842.  53 

Reynolds  t>.  Fountain. 

plaintiff's  attorney  died  on  the  5th  of  March,  1842.  In  August 
following,  notice  was  given  to  the  plaintiff  to  appoint  a  new  at- 
torney, and  on  the  8th  of  September  the  appointment  was  made 
and  notice  of  it  given  to  the  defendant.  On  the  5th  of  Octo- 
ber the  plaintiff's  default  for  not  proceeding  to  a  hearing  was 
again  entered,  and  judgment  as  in  case  of'  nonsuit  perfected. 

Woodruff"  #  Young,  for  the  plaintiff,  moved  to  set  aside  this 
judgment  for  irregularity.  They  insisted  that  the  defendant 
should  have  served  a  new  notice  to  proceed  to  a  hearing  in 
twenty  days,  and  could  not  act  upon  the  notice  given  prior  to 
the  first  judgment,  which  was  set  aside. 

Ji,  Taber,  for  the  defendant,  likened.it  to  the  case  of  a  judg- 
ment by  default  for  not  pleading  pursuant  to  a  rule  for  that 
purpose.  If  the  judgment  be  set  aside,  and  the  party  does  not 
plead,  his  default  may  be  again  entered,  without  a  new  rule 
to  plead.  If  the  plaintiff  in  this  case  wanted  any  further  terras 
when  the  first  judgment  was  set  aside,  he  should  have  asked 
for  them  at  that  time. 

By  the  Court j  BRONSON,  J.  I  think  the  defendant's  counsel 
is  right  on  this  point  of  practice.  Nothing  but  the  judgment 
was  set  aside.  The  notice  which  had  been  given  requiring  the 
plaintiff  to  proceed  to  a  hearing  was  not  touched,  and  the  de- 
fendant was  at  liberty  to  act  upon  it  and  enter  a  new  default 
without  further  notice.  Prior  to  1837,  the  practice  was  to  en- 
ter a  rule  and  give  notice  that  the  plaintiff  proceed  within 
twenty  days.  (See  44M  rule  of  1830.)  But  in  1837,  this 
and  many  other  useless  rules  were  abolished,  and  nothing  but 
a  notice  was  required.  The  analogy  between  this  notice  to 
proceed  in  twenty  days  and  a  rule  to  plead  within  the  like  pe- 
riod is  complete.  If  the  default  entered  in  either  case  for  not 
complying  with  the  notice  or  rule  be  set  aside,  it  cannot  be  ne- 
cessary to  give  a  new  notice  or  enter  a  new  rule.  The  old 
one  has  not  ceased  to  operate,  and  another  default  may  be 


54  CASES  IN  THE  SUPREME  COURT. 

Ittick  v.  Whitney. 

based  upon  it.  When  a  default  for  not  pleading  is  set  aside, 
and  no  further  order  is  made,  the  party  must  plead  immediate- 
ly, or  another  default  may  be  entered.  If  he  wants  time,  he 
should  see  that  time  is  given  by  the  order.  So  here,  when  the 
first  judgment  was  set  aside,  the  plaintiff  should  have  asked  as 
much  time  as  he  thought  necessary  for  bringing  on  the  hearing, 
and  the  allowance  should  have  been  inserted  in  the  order. 
The  judgment  is  regular,  but  the  plaintiff  must  be  relieved  on 
terms. 

Ordered  accordingly. 


ITTICK  and  others  vs.  WHITNEY. 

Under  the  act  of  1840,  (Sett.  L.  of  '40,  p.  330,  §  3,)  an  attorney  fee  "  for  attending 
the  trial  of  a  cause"  is  taxable,  though  the  circuit  in  reference  to  which  the 
charge  is  made  was  not  held,  by  reason  of  the  non-attendance  of  the  judge ;  but 
otherwise  as  to  a  counsel  fee. 

The  costs  of  a  pending  chancery  proceeding  cannot  be  taxed  in  a  suit  at  law. 

M.  Hoffman,  for  the  defendant,  moved  for  a  retaxation  of 
costs.  The  action  was  noticed  for  trial  at  the  April  circuit. 
The  circuit  judge  did  not  attend,  and  the  circuit  was  adjourn- 
ed without  day  pursuant  to  2  R.  S.  203,  §  19—21.  At  a  sub- 
sequent circuit  the  cause  was  tried,  and  the  plaintiff  had  a  ver- 
dict. He  taxed  attorney's  fee  $3,  and  counsel  fee  $5,  for  at- 
tending prepared  to  try  the  cause  at  the  circuit  which  fell 
through.  He  also  taxed  the  same  items,  without  objection,  for 
the  circuit  at  which  the  cause  was  tried. 

Pending  the  suit,  which  was  an  action  of  ejectment,  the 
plaintiff  filed  a  bill  in  chancery,  and  obtained  an  injunction 
upon  the  defendant  not  to  commit  waste.  The  defendant  ap- 
peared in  that  suit,  but  nothing  further  was  done  before  the 
ejectment  suit  was  tried  and  judgment  perfected.  The  plain- 
tiff taxed  in  his  bill  in  the  ejectment  suit  $30  for  the  costs  of 
the  chancery  suit,  which  is  still  pending. 


ALBANY,  DECEMBER,  1842.  55 

Ittick  t>.  Whitney. 
L.  Ford,  for  the  plaintiffs,  opposed  the  motion. 

By  the  Court,  BRONSON,  J.  As  the  April  circuit  fell  through 
in  consequence  of  the  non-attendance  of  the  judge,  I  think  the 
costs  of  that  circuit  stand  upon  the  same  footing  as  though  the 
circuit  had  been  held,  but  the  cause  had  not  been  reached  on 
the  calendar.  As  there  was  no  trial,  the  counsel  fee  should 
not  have  been  allowed.  (Schenck  v.  Lathropy  3  Hill)  449.) 
As  an  original  question,  I  should  have  entertained  the  same 
opinion  concerning  the  attorney's  fee.  But  as  to  that,  there  has 
been  no  important  change  in  the  language  of  the  statute.  By 
the  act  of  1813,  the  attorney  was  allowed  "  a  fee  on  trial." 
(1  R.  L.  16.)  By  the  act  of  1830,  the  allowance  was,  "  for  at- 
tending the  trial  of  a  cause."  (2  R.  S.  613,  §  18.)  The  act  of 
1840  has  the  same  words,  with  the  exception  that  the  word  "  for" 
is  omitted.  (Stat.  of  1840,  p.  330.)  Under  the  former  statutes, 
it  was  the  settled  practice  to  allow  an  attorney's  fee  whenever 
the  cause  was  noticed  for  trial  and  was  not  reached  upon  the 
calendar,  or  was  put  over  the  circuit  by  the  opposite  party. 
And  where  an  allowance  was  made  to  the  attorney  for  "  argu- 
ing demurrer,  special  verdict,"  &c.,  the  fee  was  allowed  at 
every  term  when  the  cause  was  noticed  for  argument,  al- 
though the  attorney  did  not  in  fact  attend.  This  was  done  on 
the  ground  that  the  attorney,  as  such,  never  tries  or  argues  the 
cause,  and  the  fee  must  have  been  intended  as  an  allowance  for 
preparing  the  cause  for  trial  or  argument.  (  Wilson  v.  White, 
2  Wend.  265.)  If  we  follow  the  settled  construction  of  these 
statutes,  the  attorney's  fee  was  properly  allowed. 

The  chancery  suit  is  still  pending,  and  it  belongs  to  that 
court  to  determine  who  shall  pay  the  costs  of  that  proceeding. 
Those  costs  could  not  be  taxed  in  this  suit.  The  sum  of  $35 
must  be  deducted  from  the  bill  as  taxed. 

Motion  granted. 


56  CASES  IN  THE  SUPREME  COURT. 


A-nnvmous. 


ANONYMOUS. 

A  demurrer  to  a  declaration  cannot  be  treated  as  a  nullity  on  the  mere  ground 

that  it  is  frivolous,  or  will  work  delay. 
In  order  to  justify  the  plaintiff  in  disregarding  the  demurrer  and  entering  the  de. 

fendant's  default  for  not  pleading,  it  must  appear  that  a  fraud  was  attempted 

upon  the  rules  and  practice  of  the  court.    Per  BR.ONSON,  J. 

M.  I.  Townsend,  for  the  defendant,  moved  to  set  aside  a  de- 
fault for  not  pleading,  which  was  entered  after  a  demurrer  to 
the  declaration  had  been  duly  served. 

C.  M.  Jenkins,  for  the  plaintiff,  read  affidavits  tending  to 
show  that  the  demurrer  was  frivolous,  and  put  in  merely  for 
delay.  He  cited  Bank  of  Buffalo  v.  Lowry,  (22  Wend.  630  ;) 
Anon.  (id.  619.) 

By  the  Court,  BRONSON,  J.  In  each  of  the  cases  cited,  a 
fraud  was  attempted  upon  the  rules  and  practice  of  the  court, 
and  it  was  not  allowed  to  succeed.  So,  too,  it  has  long  been 
held,  that  striking  out  the  similiter  and  demurring,  merely  for 
the  purpose  of  carrying  the  cause  over  a  circuit,  is  a  fraud 
upon  the  rules  of  the  court  which  will  not  be  tolerated.  It 
was  a  frivolous  demurrer  of 'that  kind  to  which  Cowen,  J.  allu- 
ded in  one  of  the  cases  cited.  Here  there  has  been  nothing 
out  of  the  usual  course  of  proceeding,  and  we  have  repeatedly 
held  that  a  demurrer  put  in  in  due  time  cannot  be  disregarded 
on  the  ground  that  it  is  frivolous,  or  will  work  delay.  A  plea 
is  often  put  in  where  there  is  no  real  defence,  and  yet  if  no 
trick  is  resorted  to  for  the  purpose  of  effecting  delay,  the  plea 
cannot  be  disregarded.  The  rules  and  practice  of  the  court 
allow  of  some  delays  without  any  reference  to  the  question 
whether  there  is  a  real  defence  or  not ;  such  as  time  to  plead, 
and  the  delays  resulting  from  the  service  of  a  plea  or  demur- 
rer. It  is  only  when  there  is  some  fraud  or  trick,  that  we 


ALBANY,  DECEMBER,  1842.  57 

Patchen  t>.  Wilson. 

overlook  all  the  usual  forms  for  the  purpose  of  defeating  the 
contrivance. 

Motion  granted. 


PATCHEN  &  PATCHEN,  adm'rs,  &c.  vs.  WILSON. 

An  executor  or  adminstrator  who  fails  in  an  action  necessarily  brought  in  his  repre- 
sentative capacity,  is  not  liable  to  pay  costs  except  in  the  cases  specified  in  2 
R.  S.  615,  $  17. 

Goods  and  chattels,  on  the  death  of  the  owner,  vest  in  his  personal  representa- 
tive ;  and  if  they  be  afterwards  tortiously  taken  or  wrongfully  converted,  he  may 
sue  for  them  in  his  own  name  without  describing  himself  as  executor  or  adminis- 
trator. 

Otherwise,  where  the  executor  or  administrator  sues  on  a  contract  made  with  the 
testator  or  intestate.  In  such  case,  unless  the  contract  be  a  promissory  note  pay- 
able to  bearer,  the  action  must  be  prosecuted  by  the  representative  as  such ;  and 
this,  though  the  time  for  payment  or  performance  had  not  arrived  when  the  tes- 
tator or  intestate  died. 

THE  plaintiffs  brought  assumpsit  for  money  had  and  received 
by  the  defendant  to  the  use  of  the  intestate  in  his  life  time. 
The  defendant,  as  an  attorney  and  counsellor,  had  done  busi- 
ness for  the  intestate,  and,  in  January,  1838,  collected  and 
received  upwards  of  $8000  in  money  belonging  to  the  intes- 
tate. The  defendant  paid  over  to  the  intestate  all  but  the  sum 
of  86000,  which  he  retained  in  his  hands ;  and  after  the  intes- 
tate died  in  1840,  the  administrators  brought  this  action  to  re- 
cover the  money.  It  appeared  on  the  hearing  of  the  cause  be- 
fore referees,  that  the  intestate  agreed  the  defendant  should  re- 
tain the  86000  in  his  hands  without  interest,  until  the  litigation 
in  which  the  intestate  was  then  engaged  should  be  terminated. 
Two  suits  were  still  pending  when  the  intestate  died.  The 
defendant  claimed  a  set-off  for  his  services,  amounting  to  up- 
wards of  #13,000,  and  the  referees  reported  that  $453,99  was 
due  the  defendant. 

S.  Stevens,  for  the  defendant,  now  moved  for  costs  against 
the  plaintiffs,  on  the  ground  that  they  did  not  necessarily  sue  in 
VOL.  IV.  8 


CASES  IN  THE  SUPREME  COURT. 


Patchen  v.  Wilson. 


their  representative  character.     (The  People  v.  Judges  of  Al- 
bany,  9  Wend.  486,  and  cases  there  cited.} 

J.  Edwards,  for  the  plaintiffs. 

By  the  Court,  BRONSON,  J.  The  cases  on  which  the  defen- 
dant relies  were  actions  of  replevin  and  trover  to  recover  goods 
and  chattels  which  belonged  to  the  testator  at  the  time  of  his 
death,  and  which  were  afterwards  tortiously  taken  or  wrong- 
fully converted.  As  such  property  vests,  on  the  death  of  the 
testator,  in  the  personal  representative,  the  wrong  was  done  to 
him,  and  he  could  sue  in  his  own  name  without  calling  himself 
executor.  But  it  is  not  so  where  the  executor  sues  on  a  con- 
tract made  with  the  testator.  There  he  must  necessarily  sue  in 
his  representative  character ;  and  this  is  so,  although  the  time 
for  payment  or  performance  had  not  arrived  when  the  testator 
died.  In  the  case  of  a  chattel,  the  representative  may  sue  in 
his  own  name,  and  then  use  the  letters  testamentary  as  a  part 
of  his  chain  of  title.  But  except  upon  a  note  payable  to 
bearer,  the  representative  cannot  sue  on  a  contract  made  with 
his  testator  without  calling  himself  executor.  Here  the  ad- 
ministrators necessarily  prosecuted  the  suit  in  the  right  of  the 
intestate,  and  although  they  have  failed,  they  are  not  liable  to 
pay  costs. 

Motion  denied. (a) 


(a)  See  Reynolds,  adm'r  &e.  v.  Collins,  ex'r  $-c.  (3  Hill,  441.) 


ALBANY,  DECEMBER,  1842.  59 


Cole  v.  M'Clellan. 


COLE  v*.  M'CLELLAN. 

A  person  attending  before  a  court  or  officer  is  not  entitled  to  a  witness*  privilege 

from  arrest,  unless  he  attend  as  a  witness;  and  this,  though  he  be  sworn  and 

examined  after  the  arrest. 
The  privilege  of  an  attorney  or  counsellor  from  arrest,  while  attending  court,  may 

be  waived  by  him. 
Accordingly,  where  a  counsellor,  on  being  served  with  a  capias  authorizing  him  to 

be  held  to  bail,  omitted  to  claim  any  exemption,  but  rather  invited  the  arrest, 

telling  the  officer  to  prepare  a  bail  bond,  which  he  afterwards  executed ;  held, 

that  this  amounted  to  a  waiver  of  the  privilege. 
A,  counsellor  is  not  privileged  from  arrest  while  attending  before  an  examiner, 

master,  or  a  judge  out  of  court. 

MOTION  to  be  discharged  from  arrest  on  the  ground  of  privi- 
lege. The  defendant  swore  that  he  resided  at  New  Rochelle, 
in  the  county  of  Westchester,  and  was  a  counsellor  of  the  court 
of  chancery.  That  on  the  27th  of  October  last,  while  attend- 
ing an  examination  of  witnesses  at  White  Plains  in  that  county 
before  an  examiner  in  chancery,  as  counsel  for  the  defendant  in 
a  chancery  suit,  he  was  arrested  and  held  to  bail  on  a  capias 
ad  respondendum  for  an  alleged  assault  and  battery  upon  the 
plaintiff  in  this  action.  He  further  stated,  that  on  the  day  fol- 
lowing he  was  examined  as  a  witness  on  the  part  of  the  com- 
plainants in  the  chancery  suit ;  but  it  appeared  that  he  was  not 
attending  before  the  examiner  as  a  witness,  and  was  only  called 
to  give  some  explanations  in  relation  to  the  testimony  of  other 
witnesses.  The  deputy  sheriff  who  made  the  arrest  did  not 
know  that  the  defendant  was  attending  the  examiner  as  coun- 
sel, and  the  defendant  did  not  claim  any  privilege  from  arrest. 
When  the  deputy  made  the  arrest  in  the  morning,  the  defen- 
dant said  he  should  remain  in  town  through  the  day,  and  told 
the  deputy  to  prepare  a  bail  bond,  naming  the  person  who 
would  be  his  bail,  and  he  would  sign  it.  The  deputy  call- 
ed again  in  the  evening  at  the  hotel  where  the  defendant  stop- 
ped and  presented  the  bail  bond.  The  defendant  then  men- 
tioned that  he  was  attending  the  examiner  as  counsel.  The 


60  CASES  IN  THE  SUPREME  COURT. 

Cole  v.  M'Clelkn. 

deputy  enquired  if  any  advantage  could  be  taken  on  that 
ground,  intending,  as  he  swore,  to  abandon  the  arrest  if  it  was 
incorrect.  The  defendant  replied  that  it  would  make  no  dif- 
ference ;  that  his  name  was  not  spelled  right,  and  he  could  set 
aside  the  proceedings  on  that  ground.  The  defendant  did  not 
object,  but  appeared  desirous  to  sign  the  bail  bond,  and  did 
sign  it.  The  deputy  swore  that  he  should  not  have  made  the 
arrest  if  the  defendant  had  denied  his  authority  to  make  it. 

J.  L.  Tillinghast,  for  the  defendant. 
W.  W.  Frothinghamj  for  the  plaintiff. 

By  the  Court,  BRONSON,  J.  Although  the  defendant  was 
examined  as  a  witness  the  day  after  the  arrest  was  made,  he 
had  not  been  served  with  a  subpoena,  and  was  not  attending 
the  examiner  as  a  witness.  He  is  therefore  not  entitled  to  a  dis- 
charge on  that  ground. (a) 

If  the  defendant  was  privileged  from  arrest  as  a  counsellor, 
I  see  no  reason  why  the  privilege  could  not  be  waived.  In 
Scott  v.  Van  Jllstine,  (9  John.  R.  216,)  it  was  said  that  an  attor- 
ney could  not  waive  his  privilege  ;  but  that  was  where  the  de- 
fendant had  been  sued  by  bill  as  an  attorney,  and  he  pleaded 
that  he  had  left  the  profession  and  become  a  farmer,  arid  thus 
attempted  to  defeat  the  suit  by  renouncing  his  privilege.  But 


(a)  At  common  law,  it  was  not  necessary  for  the  protection  of  a  witness  that  he 
should  be  in  attendance  under  a  subpoena  or  summons,  if,  upon  application  to  him, 
he  consented  to  attend  without  one ;  (Lord  Kenyan,  Ch.  J.,  in  Arding  v.  Flower, 
8  T.  R.  534,  536  ;  1  Phil.  Ev.  4,  7th  Land.  ed. ;  see  also  Meekins  v.  Smith,  1  H. 
BL  636,  7 ;)  and  hence,  it  has  been  held  that  a  witness  attending  upon  request 
from  another  state  or  country,  though  not  summoned  or  subpoenaed,  is  privileged. 
(Norris  v.  Beach,  2  John.  Rep.  294 ;  Walpole  v.  Alexander,  cited  1  7'idd's  Pr. 
195,  6,  3d  Am.  from  9th  Load  ed.)  For  the  statute  on  this  subject,  see  2  R.  S. 
402,  §  51  et  seq.  As  to  the  general  doctrine,  see  Cowen  $  Hill't  Notes  to  PhiL 
Ev.  15  to  17,  -and  the  COM*  there  cited. 


ALBANY,  DECEMBER,  1842. 


Brittan  v.  Peabody. 


it  was  held  that  the  plaintiff  had  a  right  to  treat  him  as  an  at- 
torney so  long  as  his  name  remained  on  the  roll.  Here  the  de- 
fendant not  only  omitted  to  claim  any  exemption,  but  he  rather 
invited  the  arrest  ;  and  after  having  thus  waived  his  privilege, 
I  think  he  ought  not  to  be  heard  in  making  this  complaint. 
Honesty  and  fair  dealing  forbid  it. 

But  there  was  no  privilege.  The  statute  has  expressly  sub- 
jected all  officers  of  courts  to  arrest  in  the  same  manner  as 
other  persons,  except  during  the  actual  sitting  of  the  court  ; 
and  no  attorney,  counsellor  or  solicitor  is  exempt  from  arrest 
while  the  court  is  sitting,  unless  he  is  employed  in  some  cause 
pending  and  then  to  be  heard  in  such  court.  (2  R.  S.  290, 
§  86.)  It  does  not  appear  that  the  court  of  chancery,  of  which 
the  defendant  is  an  officer,  was  actually  sitting  at  the  time  the 
arrest  was  made.  And  besides,  the  counsel  must  be  employed 
in  some  cause  to  be  heard  in  court.  The  exemption  does  not 
extend  to  an  attendance  before  an  examiner,  master,  or  judge 
out  of  court. 

Motion  denied. 


BRITTAN  and  another  vs.  PEABODY  and  another. 

Where,  in  an  affidavit  to  change  venue,  the  statement  of  merits  was  thus — "  thia 
deponent  is  advised  by  his  said  counsel  that  said  defendants  have  a  good  and 
substantial  defence  &c.,  which  advice  this  deponent  believes  to  be  true :"  Held, 
insufficient. 

E.  Jl.  Doolittle,  for  the  defendants,  moved  to  change  the 
venue  on  an  affidavit  by  Peabody,  which  stated,  among  other 
things,  that  "  this  deponent  is  advised  by  said  counsel  that  said 
defendants  have  a  good  and  substantial  defence  to  said  suit  up- 
on the  merits,  which  advice  this  deponent  believes  to  be  true." 

E.  F.  Smith,  contra,  said  the  affidavit  should  have  been  that 
the  defendants  have  a  defence  on  the  merits,  as  they  are  advised 


62  CASES  IN  THE  SUPREME  COURT. 

Brittan  ».  Peabody. 

&c.     They  have  only  sworn  that  they  are  advised  they  have 
a  defence,  and  believe  the  advice. 

By  the  Court,  BRONSON,  J.     The  affidavit  is  clearly  insuffi- 
cient. 

Motion  denied. (a) 


(a)  The  following  summary  of  cases  on  the  subject  of  changing  venue  for  the 
convenience  of  parties  and  witnesses  may,  it  is  believed,  be  of  use  to  the  pro. 
fession  ;  as  there  is,  perhaps,  no  other  head  of  practice  under  which  a  greater  num- 
ber of  questions  are  constantly  arising  at  the  special  terms. 

1.  In  what  actions.]    The  venue  maybe  changed  in  all  transitory  actions,  pro. 
viilcd  the  court  shall  deem  it  necessary  for  the  convenience  of  parties  and  their 
witnesses.     (2  R.  S.  409,  §  2.)     If  the  action  be  against  a  public  officer  for  acts 
done  by  him  in  virtue  of  his  office,  the  venue  will  be  changed,  for  this  cause  alone, 
to  the  county  in  which  the  fact  complained  of  happened.     But  where  it  is  question, 
able  whether  the  action  be  or  be  not  local,  the  motion  will  be  determined  upon  the 
usual  grounds,  viz.  the  convenience  of  parties  and  witnesses.     (Allen  v.  Forshay, 
12  Wend.  217.)     In  a  subsequent  case,  the  defendant  being  a  private  citizen,  it 
was  held  that  he  was  not  entitled  to  a  change  of  venue   on  the  ground  of 
the  action  being  local ;   but  must  resort  to  his  remedy  by  demurrer,  plea  in  abate, 
ment  or  nonsuit  at  the  trial.     (Morgan  v.  Lyon,  12  Wend.  265  ;  and  see  Right, 
myer  v.  Raymond,  id.  51.) 

The  distinction  which  once  prevailed  between  actions  ex  contractu  and  ex 
delicto,  in  respect  to  granting  and  refusing  motions  of  this  kind,  no  longer  exists. 
(Grah.  Prac.  561,  2d  ed.) 

2.  What  parties  may  move,  and  whether  all  should  join  in  the  application.]     The 
plaintiff  cannot  move  to  change  the  venue ;  but  only  the  defendant.     (Swartwout 
v.  Payne,  16  John.  Rep.  149.)     The  former,  however,  may  change  the  venue  by 
amending  his  declaration,  as  of  course,  under  the  23d  general  rule ;  (Rules  of 
Sup.  Court,  1837,  No.  23;   Wakeman  v.Sprague,  7  Cowen,  164;    Wolverton  v. 
Wells,  1  Hill,  374  ;)  and  if  he  inadvertently  allow  the  proper  time  for  that  purpose 
to  elapse,  he  may  obtain  leave  to  amend  on  motion.     (Paine  v.  Parker,  13  John. 
Rep.  329.) 

In  general,  if  there  be  several  defendants,  all  should  unite  hi  the  application  for 
a  change  of  venue.  (Sailly  v.  Hutton,  6  Wend.  508  ;  Legg  v.  Dorsheim,  19  id. 
700.)  But  where  a  default  for  not  pleading  has  been  entered  against  one  of  two  de- 
fendants, the  other  may  move  alone.  (Chace  v.  Benham,  12  id.  200.)  So,  if  the 
action  be  in  form  against  several,  and  process  be  served  upon  a  part  only,  it  is  the 
constant  practice  to  allow  the  motion  to  be  made  by  the  latter.  Formerly,  though 


ALBANY,  DECEMBER,  1842. 


Brittan  v.  Peabody. 


the  defendant*  were  the  maker  and  endorsers  of  a  promissory  note,  sued  jointly 
under  the  statute,  neither  could  move  for  a  change  of  venue  without  joining  the 
others.  (Legg  v.  Dorsheim,  19  Wend.  700.)  But  by  an  act  passed  in  May,  1841, 
'•  any  party  to  any  promissory  note  or  bill  of  exchange,  who  shall  be  sued  jointly 
with  any  other  party  to  said  bill  or  note,"  may  "  apply  to  the  supreme  court  for  any 
order  or  relief  which  such  party  applying  would  be  entitled  to,  if  such  party  had 
been  separately  sued  in  such  action,  and  said  court  are  authorized,  in  their  dis- 
cretion, to  grant  to  such  party  applying  the  like  order  or  relief  that  by  the  rules 
and  practice  of  the  court  would  be  granted  to  such  party  if  sued  separately." 
(Sess.  Lout  of  1641,  p.  272,  §  1.) 

3.  In  what  state  of  the  cause,  and  within  what  time.]  The  defendant  should 
use  due  diligence  in  preparing  the  motion  for  the  earliest  practicable  day  after  the 
service  of  the  declaration.  (See  Rules  of  Sup.  Court,  No.  $4.)  In  general,  he  ought 
not  to  wait  until  after  issue  joined ;  (Chapin  v.  De  Groff,  4  Coven,  554 ;  Lee  v.  Chap. 
man,  11  Wend.  186 ;)  though,  should  he  do  so,  the  motion  may  still  be  granted,  provi- 
ded the  plaintiff  will  not  thereby  lose  a  trial  nor  be  subjected  to  delay  (Deletan  v. 
Baldwin,  3  Caine*'  Rep.  104 ;  Kent  v.  Dodge,  3  John.  Rep.  447 ;  Anon.  18 
Wend.  514  ;  Lee  v.  Chapman,  11  id.  186.)  And  even  where  the  consequence  will  be 
the  loss  of  a  trial  or  a  term,  if  the  circumstances  be  such  that  the  same  result  must 
have  followed  had  notice  been  given  the  first  opportunity,  the  delay,  though 
it  extend  beyond  the  joining  of  issue,  is  not  ground  for  denying  the  motion.  The 
meaning  of  the  rule  on  this  subject  is,  not  that  the  mere  loss  of  a  trial  or  a  term 
shall  defeat  the  application,  but  that  the  plaintiff  shall  be  subjected  to  no  greater 
delay  than  what  must  have  arisen  from  an  earlier  movement  ( Gar  lock  v.  Dun. 
kle,  22  Wend.  615.)  Where,  after  a  cause  had  been  noticed  for  trial  in  the 
county  where  the  venue  was  laid  by  the  plaintiff,  and  the  trial  put  off  on  the  appli- 
cation of  the  defendant,  he  applied  to  change  the  venue,  the  motion  was 
granted  on  payment  of  the  costs  of  the  circuit  and  of  resisting  the  motion,  and  on 
the  defendant's  stipulating  to  take  short  notice  of  trial.  (Carpenter  v.  Watrous,  5 
Wend.  102.) 

If  the  object  of  the  motion  be  clearly  for  delay,  and  it  has  not  been  noticed  the 
first  opportunity,  it  will  be  denied  with  costs ;  as,  where  the  defendant  procures  an 
order  unnecessarily  enlarging  the  time  to  plead,  and,  at  the  expiration  of  that  time, 
serves  notice  of  the  motion  accompanied  by  a  further  order  for  a  stay  until  after 
decision.  (Semble ;  see  Kilbourne  \.  Fairchild,  12  Wend.  293 ;  Haywood  v. 
Thayer,  10  id.  571.)  In  Smith  v.  Prior  and  others,  (9  Wend.  498,)  the  plaintiff, 
on  receiving  notice  of  motion  to  change  the  venue,  proposed  to  change  it  to  the 
county  desired  by  the  defendants,  provided  they  would  take  short  notice  of  trial, 
the  circuit  in  that  county  being  about  to  be  held ;  to  which  proposition  the  defen- 
dants refused  to  accede.  These  facts  appearing,  and  the  defendants  not  pretend- 
ing that  the  proposed  notice  was  too  short  to  have  enabled  them  to  prepare  for  trial, 
the  motion  was  denied ;  the  court  saying,  "  we  cannot  but  perceive  that  the  sole 
object  of  the  defendants  is  delay."  This  case,  however,  does  not  apply  so  as  to 
give  the  like  advantage  from  a  proposition  and  refusal  to  accept  abort  notice,  if  tha 


64  CASES  IN  THE  SUPREME  COURT. 

Brittan  v.  Peabody. 

plaintiff  has  omitted  to  declare  till  too  late  to  notice  for  trial  at  the  circuit  where 
the  venue  is  laid.     (Garlock  v.  Dunkle,  22  Wend.  615.) 

The  venue  may  be  changed,  though  the  cause  be  at  issue  on  demurrer,  and  no 
issue  of  fact  be  contemplated  until  the  demurrer  is  decided.  ( Thurber  v.  Brown,  2 
Hill,  382.) 

4.  The  affidavit  on  which  to  move.]  The  affidavit  must,  in  general,  be  made 
by  the  defendant  himself;  though,  under  special  circumstances,  set  forth  in 
the  affidavit,  it  has  been  held  sufficient  when  made  by  another— e.  g.  the  defen- 
dant's attorney.  (Grah.  Prac.  562,  2d  ed. ;  1  Dunl.  Prac.  413  ;  Scott  v.  Gibbs, 
2  John.  Cos.  116 ;  Colm.  $  Cain.  Gas.  128,  S.  C.)  The  nature  of  the  action  is 
usually  stated,  but  this  is  unnecessary ;  (Baker  v.  Sleight,  2  Caines?  Rep.  46 ; 
Az&nymous,  1  Hill,  668 ;)  nor.  is  it  necessary  to  mention  the  county  where  the 
cause  of  action  arose ;  (Anonymous,  1 H ill,  668  ;)  though  otherwise,  previous  to  the 
revised  statutes.  (Franklin  v.  Underhill,  2  John.  Rep.  374 ;  Tillinghast  v.  King, 
6  Cowen,  519  ;  1  Dunl.  Prac.  413.) 

It  must  appear  by  the  affidavit  that  the  defendant  has  merits ;  and,  in  this  par- 
ticular, its  statements  should  purport  to  be  made  under  the  advice  of  counsel, 
(Swartwout  v.  Hoage,  16  John.  Rep.  3,)  unless  the  defendant  be  himself  a  coun- 
sellor. ( Cromwell  v.  Van  Rensselaer,  3  Cowen,  346.)  Where  the  defendant  is 
not  of  the  degree  of  counsel,  and  he  is  therefore  to  swear  to  the  advice  of  counsel, 
the  61st  general  rule  applies.  (Onondaga  Co.  Bank  v.  Shepherd,  19  Wend.  10.) 
This  requires  that,  in  addition  to  what  was  usually  inserted  before  in  similar  affi- 
davits, the  party  shall  "  swear  that  he  has  fully  and  fairly  stated  the  case  to  hia 
counsel,  and  shall  give  the  name  and  residence  of  such  counsel."  (Rules  Sup. 
Court,  1837,  Ai>.  61.)  In  regard  to  the  fact  of  having  stated  the  case  &,c.,  a 
close  adherence  to  the  language  of  the  rule  is  to  be  observed,  though  slight  and 
unimportant  variances — e.  g.  "  this  case,"  or  "  his  case,"  instead  of  "  the  case" — 
have  been  overlooked.  (Brownell  v.  Marsh,  22  Wend.  636.)  But  a  substitution 
of  the  words  "  his  defence,"  (id.)  or  "  the/ac<s  of  his  case,"  (Richmond  v.  Cowles, 
2  Hill,  359,)  has  been  held  fatal.  Nor  will  it  do  to  qualify  the  requisition  of  the 
rule  by  adding,  "  so  far  as  the  facts  have  come  to  deponent's  knowledge,"  unless  a 
sufficient  excuse  be  shown.  (Brown  v.  Tousey,  19  Wend.  617.)  After  comply- 
ing with  the  above  rule,  the  next  thing  to  be  stated  is,  what  was  usually  inserted 
in  similar  cases  before,  viz.  that  the  defendant  "  has  a  good  and  substantial  defence 
on  the  merits,  as  he  is  advised  by  his  said  counsel  and  believes."  (Swartwout  v. 
Hoage,  16  John.  Rep.  3  ;  Bruen  v.  Adams,  3  Games'  Rep.  97 ;  Cannon  v.  Titus, 
5  John.  Rep.  355 ;  and  see  Wilkes  v.  Hotchkiss,  id.  360.)  In  this  particular  also, 
it  is  safest  to  follow  the  accustomed  form.  In  England,  somewhat  slight  depar- 
tures have  been  deemed  fatal.  Thus,  the  words  "  a  good  and  meritorious  defence" 
are  there  deemed  insufficient.  (Bower  v.Kemp,!  Crompt.  <%•  Jerv.  288.)  So,  as 
to  the  words,  "  a  good  defence  to  the  action,"  without  adding  on  the  merits. 
(Pringle  v.  Marsack,  1  Dowl.  £  Ryl.  155 ;  Page  v.  South,  7  Dowl.  Pr.  Cos. 
412.)  And  in  this  state,  where  the  words  were,  "a  good  and  substantial  de- 
fence," held,  insufficient,  without  adding  on  the  merits.  (Jackson  v.  Stiles,  3 


ALBANY,  DECEMBER,  1842.  (55 

Brittan  v.  Peabody. 

Caines"  Rtp.  93.)  But  in  Briggt  v.  Briggs,  (3  John.  Rep.  449,)  the  words  "a 
good  and  substantial  defence,"  were  adjudged  to  mean  a  defence  on  the  merits; 
and  it  was  raid  that  Jackson  v.  Stiles  proceeded  upon  peculiar  circumstances,  not 
reported,  affording  strong  reason  to  believe  that  there  wa»  really  no  defence  on  the 
merits.  Where  the  statement  was,  that  the  defendant  "  hath  merits  and  good 
cause  of  defence,"  &c. ;  held  bad.  (Lane  v.  Isaacs,  3  Dowl.  Pr.  Cat.  652.)  So, 
where  the  affidavit  did  not  sufficiently  connect  the  statement  of  merits  with  the 
particular  case.  (7  ate  \.BodJicld,  3  Dowl.  Pr.  Cat.  218.)  It  has,  however, 
been  held,  that  though  the  affidavit  omit  to  state  the  defence  to  be  on  the 
merits,  yet  if  it  distinctly  set  forth  the  facts  constituting  the  defence,  it  is 
sufficient.  (Johns  v.  Nevison,  2  Dowl.  Pr.  Cat.  260.)  So,  where  the  affi. 
davit  detailed  the  facts,  and  then  stated  that  the  defendant  had  a  good  and  sub- 
stantial  defence  &c.,  but  did  not  diow  that  he  had  been  so  advised  by  counsel. 
( Wilkes  v.  Hotchkist,  5  John.  Rep.  360.)  It  is  hardly  probable,  however,  especial- 
ly since  the  61st  rule,  that  the  court  would  now  regard  such  a  detailed  statement 
as  dispensing  with  any  of  the  essential  requisites  of  the  common  affidavit  of  merits. 
Where  the  affidavit  was  that  the  defendants  were  advised  by  counsel  that  they 
had  a  good  and  substantial  defence  &c.,  which  advice  deponent  believed  to  be  true ; 
HELD,  insufficient.  (Ante,  p.  61.) 

Having  sworn  to  merits,  the  defendant  should  state  in  the  affidavit  that  he 
has  disclosed  to  his  counsel  the  facts  which  he  expects  to  prote  by  each  and  every 
of  the  witnesses,  $c.  (Onondaga  Co.  Bank  v.  Shepherd,  19  Wend.  10.)  The 
names  of  the  witnesses  must  be  given ;  (Anonymous,  6  Cowen,  389 ;)  and  their 
residence.  (Hull  v.  Hull,  1  Hill,  671 ;  Low  v.  Hallett,  2  Caines*  Rep.  374  ;  Du 
Boys  v.  Frank,  3  id.  95.)  It  must  be  shown,  moreover,  that  they  arc  each  and 
every  of  them  material  to  the  defence,  [or,  "  for  the  defendant,"]  (Anonymous,  1 
Hill,  668,)  as  the  defendant  it  advised  by  his  counsel  and  verily  believes.  (Anon. 
ymous,  3  Wend.  425 ;  Anonymous,  7  Cowen,  102.)  They  must  appear  to  be  neces- 
sary also,  as  well  as  material ;  (Satterlee  v.  Groat,  6  Cowen,  33;  see  Young  v. 
Scott,  3  Hill,  32,  35;)  and,  for  this  purpose,  the  affidavit  adds,  that  without  the  tes- 
timony of  each  and  every  of  the  witnesses,  the  defendant  cannot  safely  proceed  to 
the  trial  of  the  cause,  as  he  it  advised  by  his  counsel  and  believes.  (Satterlee  v. 
Croat,  6  Cowen,  33;  Anonymous,  7  id.  102;  Anonymous,  3  Wend.  425.) 

The  words  each  and  every  in  the  clauses  above  noticed  are  essential,  and  must 
be  repeated ;  (Onondaga  Co.  Bank  v.  Shepherd,  19  Wend.  10 ;  Anonymous,  3  id. 
425 ;  Constantine  v.  Dunham,  9  id.  431 ;)  though  the  affidavit  may  be  made  to 
answer  for  one  witness  without  those  words.  (Brown  v.  Peck,  10  Wend.  569.) 
The  statement  as  to  the  advice  of  counsel,  &c.  must  also  be  repeated  as  above. 
(Anonymous,  3  Wend.  425 ;  Constantine  v.  Dunham,  9  id.  431 ;  and  see  Anony- 
mous, 3  Cowen,  14.)  Where,  however,  the  defendant  is  himself  a  counsellor,  he 
need  not  swear  under  the  advice  of  counsel ;  and  the  affidavit  may,  in  this  partic- 
ular, be  modified  accordingly.  (Cromwell  v.  Van  Rensselaer,  3  Cowen,  346.) 
For  the  purposes  of  the  motion,  the  court  will  judicially  notice  the  fact  that  tho 
defendant  is  a  counsellor.  (Id.) 

VOL.  IV.  9 


CASES  IN  THE  SUPREME  COURT. 


Brittan  v.  Peabody. 


General  Form  of  Affidavit  to  change  Venue. 
SUPREME  COURT. 


John  Doe 

ads. 
Richard  Roe. 


[Montgomery]  county,  ss:   John  Doe,  the  above  named 

defendant,  being  sworn  says,  that  the  venue  in  this  cause  is  laid  in  the  county 
of  [Erie ;]  that  the  declaration  was  served  on  the  [14th  of  October  inst. ;]  that 
the  cause  is  not  at  issue :  [or  if  at  issue,  state  the  fact,  and  the  time  when  issue 
was  joined;]  that  deponent  has  fully  and  fairly  stated  the  case  to  [Samuel 
fielding,  Jun.]  his  counsel  in  this  cause,  who  resides  at  [Amsterdam,]  in  the 
county  of  [Montgomery,]  and  has  fully  and  fairly  disclosed  to  his  said  coun. 
scl  the  facts  which  he  expects  to  prove  by  each  and  every  of  the  witnesses 
hereinafter  named;  that  deponent  has  a  good  and  substantial  defence  on  tho 
merits,  in  this  cause,  as  he  is  advised  by  said  counsel  and  verily  believes ;  that 
[Isaac  Morris]  and  [Nathan  Neff ]  of  the  town  of  [Amsterdam,]  and  [Jay  Ca. 
dy]  and  [John  Schuyler,]  of  the  town  of  [Florida,]  all  of  whom  reside  in  said 
county  of  [Montgomery,]  are  each  and  every  of  them  material  witnesses  for  this 
deponent  on  the  trial  of  this  cause,  as  he  is  advised  by  said  counsel  and  verily 
believes ;  and  that,  without  the  testimony  of  each  and  every  of  the  said  witnesses, 
deponent  cannot  safely  proceed  to  the  trial  of  this  cause,  as  he  is  also  advised  by 
mid  counsel  and  verily  believes. 

JOHN  DOE. 
Subscribed  and  sworn,  &c. 

J.  FRENCH, 

Justice  of  the  Peace. 

5.  Staying  proceedings  for  the  purpose  of  the  motion.]  If  necessary,  the  de- 
fendant may  have  an  order  staying  proceedings  to  enable  him  to  make  the  motion. 
This  may  be  obtained  by  presenting  the  motion  papers  to  a  justice  of  the  supreme 
court,  a  circuit  judge  or  a  supreme  court  commissioner.  (Rules  of  Sup.  Court,  1837, 
No.  58.)  The  order  will  not  be  granted  unless  it  appear,  from  the  papers,  that  the 
defendant  has  used  due  diligence  in  preparing  the  motion  for  the  earliest  practicable 
day  after  the  service  of  the  declaration.  (Id.  No.  94 ;  see  also  Killbourne  v.  Fair- 
child,  12  Wend.  293,  4;  Haywood  v.  Thayer,  10  id.  571.)  The  proceedings  are 
not  to  be  stayed  for  a  longer  time  than  to  enable  the  party  to  make  his  motion  ac- 
cording to  the  settled  practice  of  the  court,  and,  if  made,  until  the  decision  of  the 
court  thereon.  (Rules  of  Sup.  Court,  1837,  No.  58.)  Nor  will  the  order  stay  the 
plaintiff  in  putting  the  cause  at  issue,  or  taking  any  other  step  except  giving  notice 
and  subpffinaing  witnesses  for  the  trial.  (Rules  of  Sup.  Court,  1837,  No.  94.)  To 
perfect  the  stay,  the  plaintiff  must  serve  the  order,  with  a  copy  of  the  affidavit  on 
which  it  is  granted,  and  a  notice  of  the  motion.  (Rules  of  Sup.  Court,  1837,  No. 
58.)  The  order  will  not  be  operative,  unless  the  service  of  it  be  accompanied  by 
the  proper  papers.  (Id;  Roosevelt  v.  Fultdn,  7  Cowen's  Rep.  438  ;  Kirby  v.  Cogs- 
well,  1  Caines*  Rep.  505 ;  Bailey  v.  Caldwell,  3  John.  R.  451.) 


ALBANY,  DECEMBER,  1842.  57 

Brittan  c.  Pcabody. 

Farm  of  Order  to  stay  Proceeding. 

SUPREME  COURT. 


John  Doc 

ads. 
Richard  Roe. 

Upon  reading  the  within  affidavit,  it  is  ordered  that  all 

proceedings  in  this  cause  be  stayed  until  the  [1st  Tuesday  of  December  next,]  to 
enable  the  defendant  to  move  for  a  change  of  venue ;  and,  if  the  motion  be  then 
made,  until  the  order  of  the  court  thereon. 

Dated  <tc.  JOHN  WILLARD, 

Circuit  Judge. 

6.  Revoking  order  to  ttay  proceedings.]  On  presenting  to  and  filing  with  the 
officer  granting  the  order  to  stay  proceedings,  an  affidavit  showing  such  facts  as 
will  entitle  the  plaintiff,  according  to  the  settled  oracticc  of  the  court,  to  retain  the 
venue,  the  officer  will  revoke  the  order ;  and  the  plaintiff  is  to  give  immediate  notice 
of  such  revocation  to  the  defendant's  attorney.  (Rules  of  Sup.  Court.  1837,  No. 
94.)  The  requisites  of  the  affidavit  to  obtain  an  order  of  revocat  on  under  this 
rule,  will  be  seen,  post,  pi.  9.  As  to  the  general  doctrine  relating  to  the  revocation 
of  orders  to  stay,  &c.  and  the  effect  of  the  revocation,  sec  Hart  v.  Butterjieid,  (3 
Hill,  455,)  Anonymous,  (id.  448,)  and  Grah.Prac.  680,  1,  2d  ed. 

Form  of  Order  of  Revocation. 
SUPREME  COUKT. 


Richard  Roe 

v. 
John  Doe. 


The  plaintiff  in  the  above  cause  having  presented  and  filed 

with  me  an  affidavit  showing  such  facts  as  will  entitle  him  to  retain  the  venue  in 
said  cause,  I  hereby  revoke  the  order  to  stay  proceedings  granted  by  me  on  the 
I  insert  the  date  of  the  order.] 
Dated  &c.  JOHN  WILLABD, 

Circuit  Judge. 

7.  Notice  of  the  motion.)  The  notice  is,  in  general,  to  be  for  the  first  day  of  the 
term,  and  canaot  be  for  a  later  day,  unless  sufficient  cause  be  shown  (and  contain, 
ed  in  the  affidavits  served)  for  not  giving  notice  for  the  first  day.  (Rules  of  Sup. 
Court,  1837,  A'o  55 ;  see  also  Grah.  Pr.  678,  9,  2d  ed.)  It  is  an  eight  day  notice, 
and  must  be  accompanied  with  a  copy  of  the  affidavit  or  affidavits  on  which  the 
motion  is  intended  to  be  made.  (Rules  of  Sup.  Court,  1837,  A'o.  55;  and  tu 
Grah.  Pr.  678,  9,  3d  ed.) 


CASES  IN  THE  SUPREME  COURT. 


Brittan  v.  Peabody. 


'Form  of  Notice  of  Motion. 

SUPREME  COURT. 

John  Doe  1 

ads.  > 

Richard  Roe.  } 


SIR — Take  notice  that  on  the  affidavit,  a  copy  of  which  is 
herewith  served,  this  court  will  be  moved  at  the  next  special  term  thereof,  to  be 
held  at  the  capitol  in  the  city  of  Albany  on  the  [let  Tuesday  of  December  next,] 
for  a  rule  or  order  changing  the  venue  in  this  cause  from  the  county  of  [Erie]  to 
the  county  of  [Montgomery,]  or  for  such  other  or  further  rule  or  order  as  the  court 
may  deem  proper  to  grant.  Dated  &c. 

Yours  &c. 

S.  BELDINO,  Jim. 

To  BENJAMIN  H.  AUSTIN,  Esqr.  Def 'ta  Att'y. 

PltfPs  Att'y. 

8.  Grounds  of  opposition  to  (he  motion.]  These,  in  general,  are  to  be  sought 
for  entirely  in  the  number  and  residence  of  the  witnesses ;  (Anonymous,  1  Hill, 
663,  D  ;)  and  the  application  will  therefore  not  be  defeated  by  showing  that  the 
defendant's  witnesses  will  have  to  travel  a  few  miles  further,  in  case  the  venue  be 
changed,  than  if  it  were  retained.  (Hull  v.  Hull,  id.  671.)  So,  though  it  appear 
that  the  court  house  in  the  county  where  the  venue  is  laid  is  but  a  short  distance — 
e.  g.  six  miles — from  the  court  house  of  the  county  to  which  the  defendant  seeks  to 
change  it,  and  that  the  counties  adjoin.  (Williams  v.  Fellows,  9  Wend.  451.) 
But  see  Mumford  v.  Cammann,  (3  Games'  Rep.  139.)  The  residence  of  the  plain- 
tiff's witnesses  in  an  adjoining  state,  to  a  pumbcr  exceeding  that  sworn  to  by  the 
defendant,  is  not  ground  for  retaining  the  venue ;  and  this,  though  their  residence 
be  adjacent  to  the  county  where  the  venue  is  laid,  (feet  v.  Billings,  2  Wend.  282, 
Canfeld  v.  Lindley,  4  Cowen,  532,)  and  though  the  plaintiff  has  obtained  the 
promise  of  his  witnesses  that  they  will  attend.  (Bank  of  St.  Albany  v.  Knicker- 
bocker and  others,  6  id.  541.)  Nor  will  the  venue  be  retained  on  the  plaintiff's 
stipulating  to  pay  the  expense  of  the  defendant's  witnesses  ;  (Rathbone  v.  Harmon, 
4  Wend.  208 ;  but  see  Worthy  v.  Gilbert,  4  John.  Rep.  492 ;)  or  changed,  on  tho 
defendant's  entering  into  a  like  stipulation  as  to  the  plaintiff's  witnesses.  (Har. 
rower  v.  Beits,  2  Cowerfs  Rep.  496.)  The  motion,  however,  will  be  denied,  if  it 
appear  that  the  plaintiff  has  a  greater  number  of  witnesses  residing  in  the  county 
where  the  venue  is  laid,  than  that  sworn  to  by  the  defendant.  (Anonymous,  \ 
Hill,  6G8  ;  Hull  v.  Hull,  id.  671 ;  Sherwood  v.  Steele,  12  Wend.  294,  5.)  So  if 
the  number  of  witnesses  sworn  to  by  the  respective  parties  be  equal.  (Wood  v 
Bishop,  5  Cowen's  Rep.  414 ;  see  Sherwood  v.  Steele,  12  Wend.  294.)  Where, 
after  service  of  papers  for  a  motion  to  change  the  venue  from  the  county  of  S.  to 
the  county  of  M.,  together  with  an  order  to  stay  proceedings,  the  plaintiff  amended 
his  declaration  under  the  23d  rule,  by  changing  the  venue  to  the  county  of  A. ; 
and  it  appeared  on  the  motion  that  the  plaintiff  had  a  sufficient  number  of  witnesses 


ALBANY,  DECEMBER,  1842.  59 

Brittan  c.  Pcabody. 

to  retain  the  venue  in  the  latter  county,  and  that  the  defendant  had  had  time  to 
servo  new  papers  since  the  amendment,  but  omitted  to  do  so,  the  motion  was 
denied.  (Wolverton  v.  Wells,  1  Hill,  374.)  If  the  defendant,  after  service  of 
his  papers,  and  before  the  motion  be  actually  made,  Buffer  a  default  for  not  pleading 
to  be  entered  against  him,  this  will  defeat  the  application,  even  though  he  obtained 
and  served  an  order  staying  proceedings  pursuant  to  the  rule  on  that  subject 
(Anonymous,  Feb.  Sp.  Term,  1843,  Af.  S.;  and  tee  Rules  of  Sup.  Court,  1837,  No. 
94 ;  ante,  pi.  5.)  For  other  grounds  on  which  the  motion  may  be  resisted,  see 
ante,  pi.  2,  3,  4,  of  this  note. 

9.  Affidavit  to  oppose  motion.]  The  plaintiff's  affidavit  should  be  in  form  and 
substance  similar  to  that  of  the  defendant,  (Onondaga  Co.  Bank  v.  Shepherd,  19 
Wend.  10,  Grah.  Pr.  563,  2d  ed.,  1  Burrilff  Pr.  414,)  except  that  it  need  not 
show  the  plaintiff  has  merits.  He  must  swear  unqualifiedly  to  an  equal  number 
of  witnesses  with  those  sworn  to  by  the  defendant,  or  a  greater  number,  or  the 
motion  will  be  granted.  Accordingly,  where,  in  answer  to  the  defendant's  affida- 
vit of  eight  witnesses  residing  in  and  near  the  county  to  which  the  venue  was  sought 
to  be  changed,  the  plaintiff  swore  that  he  had  nine  witnesses  residing  in  and  near 
the  county  where  the  venue  was  laid,  and  that  without  the  testimony  of  each  and 
every  of  them  he  could  not  safely  proceed  to  trial,  "  taking  into  consideration  the 
sustaining  of  the  action,  and  meeting  and  resisting  the  defence  which  he  beluved 
the  defendant  intended  setting  up,"  the  affidavit  was  held  to  be  insufficient  and 
the  motion  granted.  (Sherwood  v.  Steele,  12  Wend.  294.) 

General  Form  of  Affidavit  to  oppose  Motion, 
SUPREME  COURT. 


Richard  Roe 

r. 
John  Doe. 


[Erie]  county  SB  :  Richard  Roe,  the  above  named  plain. 

tiff,  being  sworn  says,  that  he  has  fully  and  fairly  stated  the  case  to  Benjamin  H. 
Austin,  his  counsel  in  this  cause,  who  resides  at  [the  city  of  Buffalo]  in  the  county 
of  [Erie,]  and  has  fully  and  fairly  disclosed  to  his  said  counsel  the  facts  which  he 
expects  to  prove  by  each  and  every  of  the  witnesses  hereinafter  named  ;  that  [Ben- 
jamin  Rose]  and  [Hiram  Perry]  of  the  town  of  [Concord,]  and  [James  King]  and 
[Charles  Stevens]  of  the  town  of  [Brandt,]  all  of  whom  reside  in  the  said  county  of 
[Erie,]  are  each  and  every  of  them  material  witnesses  for  this  deponent  on  the 
trial  of  this  cause,  as  he  is  advised  by  said  counsel  and  verily  believes ;  and  that 
without  the  testimony  of  each  and  every  of  said  witnesses,  this  deponent  cannot 
safely  proceed  to  the  trial  of  this  cause,  as  he  is  also  advised  by  said  counsel  and 
verily  believes. 

RICHARD  ROE. 
Subscribed  and  tworo  <tc. 

THOXAJ  HARPER, 

Justice  of  the  Peace. 


70  CASES  IN  THE  SUPREME  COURT. 

Brittan  v.  Peabody. 

10.  Costs  of  the  motion.]    In  general,  whether  the  motion  be  granted  or  denied, 
costs  are  not  expressly  awarded,  but  abide  the  event,  and  are  taxed  in  the  bill  of 
the  prevailing  party;  (Gidney  v.  Spclman,  6  Wend.  525;  see  Norton  v.  Rich,  20 
Wend.  475  ;  Worthy  v.  Gilbert,  4  John.  Rep.  492  ;)  but  when  the  motion  is  de. 
nicd,  although  the  defendant  succeeds  in  his  defence  to  the  action,  he  is  not  entitled 
to  costs  of  the  motion.     (Gidney  v.  Spelman,  6  Wend.  525.)     If  the  defendant 
move  on  defective  papers,  and  for  that  reason  fail,  the  motion  will  be  denied  with 
costs  of  opposing.     (Sill  v.  Trumbull,  I  Cowen,  569.)     So  where  it  is  manifest 
that  the  defendant's  object  hi  making  the  motion  is  delay,  and  it  is  denied  on  that 
ground.     (Killbourne  v.  Fairchild,  12  Wend.  293.)     See  also  Anonymous,  (18 
Wend.  514.)     So,  where  the  motion  is  denied  on  the  plaintiff  swearing  to  the  largest 
number  of  witnesses,  and  is  renewed  at  a  subsequent  term,  without  leave,  by  al- 
leging a  still  greater  number.     (Purdy  v.  Wardell,  10  Wend.  619.)    If,  after  a 
cause  is  noticed  for  trial,  the  defendant  obtain  an  order  to  stay  proceedings  with 
a  view  to  move  to  change  the  venue,  and  his  motion  be  granted,  he  will  be  required 
to  pay  the  costs  of  preparing  for  trial  up  to  the  time  of  the  order.     (Budd  v.  Mai- 
burn,  1   Cowen's  Rep.  47  ;  and  see  Rules  of  Sup.  Court,  1637,  No.  94.)     See 
also  Carpenter  v.  Watrous,  (5  We  d.  102.)     As  the  motion  can  only  be  made  at 
a  special  term,  if  it  be  noticed  for  a  general  term,  the  plaintiff  will  be  entitled  to 
costs  for  appearing  and  raising  the  objection.     (Donaldson  v.  Jackson,  9  Wend. 
450,  note.)    So,  though  the  motion  be  granted  as  to  the  proposed  change  of  venue,  if 
the  defendant  in  his  notice  ask  for  more  than  he  is  entitled  to — e.  g.,  the  costs  of  the 
motion — he  will  be  ordered  to  pay  the  costs  of  appearing  to  oppose.     Such  has  been 
the  uniform  course  of  decision,  though  I  have  found  no  reported  case  to  that  effect. 

Where  costs  are  expressly  allowed,  this  should  be  mentioned  in  the  rule,  for  oth- 
wise  payment  cannot  be  enforced  ;  and  if  the  party  neglect  to  enter  his  rule  for 
costs,  they  will  not  be  summarily  awarded  afterward.  (Semble,  Lownsbury  ads. 
Rathbone,  1  Wend.  283 ;  Anonymous,  4  CotcenV  Rep.  357 ;  Palmer  v.  Mulli. 
gan,  2  Games'  Rep.  380.) 

11.  Subsequent  proceedings.]     The  mere  granting  of  the  motion  does  not  ope- 
rate a  change  of  venue  ;  but  the  defendant  must  follow  up  the  proceeding  by  serv- 
ing a  certified  copy  of  the  rule.     (Root  v.  Taylor,  18  John.  Rep.   335 ;    Smith  v. 
Sharp,  13  id.  466  ;  Keep  v.  Taylor,  4  Cowen,  541.)     A  mere  notice  of  the  rule  is 
not  sufficient.     (Keep  v.   Taylor,  4   Cowen,  541,  2.)     Until  the  rule  be  properly 
served,  the  plaintiff  may  consider  the  original  venue  as  the  place  of  trial,  and  pro- 
ceed accordingly.     (Id.)     If  the  parties  go  to  trial  in  the  county  where  the  plain- 
tiff laid  the  venue,  without  regard  to  the  rule  for  changing  it,  neither  will  be  allow- 
ed to  allege  this  by  way  of  setting  aside  or  impeaching  the  proceedings  for  irregu- 
larity.   (The  People  v.  Mather,  3  Wend.  431,  434.) 


CASES 

ARGUED  AND  DETERMINED 

IN  THE 

E  tST  2P  IB  IS  £2  32    (9  ©  tJ  IB 

OF   THE 

STATE  OF  NEW-YORK, 

IN  JAiMJARY  TERM,  1848. 


THE  PEOPLE  ex  rel.  SOUTHWICK  and  others  vs.  EVEREST,  late 
sheriff  of  Essex. 

Though  an  action  against  the  sheriff  for  not  returning  a  fi ,  fa.  bo  barred  by  tne 
statute  of  limitations,  he  may  still  be  proceeded  against  by  attachment  in  order 
to  compel  a  return. 

In  such  case,  however,  the  court  will  not  impose  a  fine  for  the  benefit  of  the  party 
instituting  the  proceeding,  but  will  discharge  the  sheriff  on  his  returning  \hcft. 
fa.  and  paying  costs. 

Though  the  general  statute  of  limitations  does  not  in  terms  apply  to  a  bill  in  equity 
evco  when  concurrent  with  the  remedy  at  law ;  yet  the  court  of  chancery 
always  allows  it  to  be  pleaded  in  such  cases.  Per  COWEN,  J. 

ON  Friday  of  the  second  week  of  term  the  defendant  was 
brought  up  by  attachment  for  not  returning  aji.fc.  The  writ 
was  delivered  to  the  defendant's  deputy  in  the  month  of  Novem- 
ber, 1835.  It  was  in  favor  of  the  relators  and  against  Newell 
&  Purmort,  of  Essex  county ;  and  the  plaintiffs  communicated 
with  the  deputy  respecting  its  execution.  It  was  returnable  in 

[71] 


72  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Everest. 

January  term,  1836.  Notice  to  return  the  writ  was  served  on 
the  defendant,  July  24th,  1841,  after  he  had  ceased  to  be  sheriff. 
But  he  neglected  and  still  refused  to  make  any  return. 

J.  G.  Britton,  for  the  relators. 
S.  Stevens,  contra. 

By  the  Court,  COWEN,  J.  The  only  excuse  set  up  for  the 
sheriff's  default  is,  that  the  statute  of  limitations  has  run  against 
an  action  for  not  returning  the  execution  at  the  return  day. 
But  this  is  clearly  not  a  full  answer.  It  furnishes  no  reason 
why  ihefi.fa.  should  not  now  be  returned.  Such  return  may  be 
essential  to  warrant  ulterior  proceedings  on  the  part  of  the  plain- 
tiffs— e.  g.  a  further  execution,  a  creditor's  bill,  &c. 

It  is  said,  however,  that  we  ought  not,  after  such  delay,  to 
do  more  than  charge  the  sheriff  with  costs  j  and  we  are  in- 
clined to  think  that  he  should  be  discharged,  on  now  returning 
the  writ,  and  paying  the  costs  of  this  proceeding.  The  statute 
of  limitations  is  certainly  not,  proprio  vigore,  a  bar  to  the  im- 
position of  a  fine  for  the  benefit  of  the  plaintiffs,  even  to  the 
full  amount  of  the  sum  endorsed  upon  ihefi.fa.  But  we  think 
that,  notwithstanding,  where  the  party  lies  by,  after  the  return 
day,  till  an  action  for  not  returning  is  barred  by  the  statute, 
damages  for  the  omission  ought  not  summarily  to  be  awarded. 
The  party  should  be  left  to  his  action  upon  the  return.  The 
action  for  the  original  omission  to  return  being  barred,  the 
party,  by  asking  for  a  fine  on  that  account,  seeks  by  indirec- 
tion what  the  statute  has  denied  to  him  directly.  The  general 
statute  of  limitations  has  no  application,  eo  nomine,  to  a  bill  in 
equity,  even  when  that  is  concurrent  with  the  remedy  at  law. 
Yet  the  court  of  chancery  always  allows  it  in  such  a  case  to 
be  pleaded  ;(a)  for  the  reason  that  the  party  should  not  be  al- 


(a)  See  Cowen  $  Hilt's  Notes  to  Phil.  Ev.  p.  326,  331  et  teq.,  and  the  cote* 
there  cited;  also  Pratt  v.  Northam,  (5  Maton,  95,  111,  112.) 


ALBANY,  JANUARY,  1843.  73 

Breasted  c.  The  Farmers'  Trust  &,  Loan  Company. 

lowed  to  evade  its  effect  by  resorting  to  another  forum.  The 
principle  applies  here.  Being  barred  of  a  remedy  by  action, 
he  should  not  be  permitted  to  hide  his  laches  under  the  form 
of  a  proceeding  for  contempt.  If  the  sheriff's  counsel  thinks 
a  rule  for  leave  to  return  nunc  pro  tune  will  work  any  additional 
protection;  he  may  take  a  rule  for  such  leave. 

Rule  accordingly. 


BREASTED  and  others,  adm'rs  &c.  vs.  THE  FARMERS'  LOAN  AND 
TRUST  COMPANY. 

A  provision  in  a  life-policr  that  it  is  to  be  deemed  void  in  case  the  assured  shall 

"  die  by  his  own  hand"  imports  a  death  by  suicide ;  i.  e.  an  act  of  criminal  self. 

destruction. 
Accordingly,  in  an  action  on  such  policy  tho  underwriters  will  be  liable  though 

it  appear  that  the  assured  drowned  himself,  provided  the  act  was  done  in  a  fit  of 

inxanity. 

DEMURRER  to  replication.  The  declaration  was  on  a  policy 
of  insurance  upon  the  life  of  Hiram  Comfort,  the  plaintiffs'  in- 
testate. The  policy  contained  a  clause  providing  that,  in  case 
the  assured  should  die  upon  the  seas  &c.,  or  ly  Ms  own  hcndt 
or  in  consequence  of  a  duel,  or  by  the  hands  of  justice  &c.,  the 
policy  should  be  void.  The  defendants  pleaded  that  Comfort 
committed  suicide  by  drowning  himself  in  the  Hudson  river. 
Replication,  that  when  the  assured  drowned  himself  he  was  of 
unsound  mind  and  wholly  unconscious  of  the  act.  Demurrer 
and  joinder. 

W.  C.  Ncyes,  for  the  defendants,  insisted  that  the  replica- 
tion furnished  no  answer  to  the  matter  set  forth  in  the  plea. 
He  cited  and  commented  on  Chit.  Med.  Jur.  354 ;  Rex  v. 
Saloway,  (3  Mod.  100 ;)  Smith's  Merc.  Law,  256  j  Ellis  on 
Ins.  102,  3  ;  Blaney  on  Life  Jlssur.  App.  151  j  McCull.  Com. 
Diet.  710, 711,  ed.  o/'39 ;  Jac.  Law  Diet.  tit.  "  Fdo  de  se ;"  id. 

VOL.  IV.  10 


74  CASES  IN  THE  SUPREME  COURT. 

Breasted  v.  The  Fanners'  Loan  &  Trust  Company. 

tit.  "  Homicide?  in  j  Burn's  Law  Diet.  tit.  "  .Fe/o  ete  se  ;" 
WefoJ.  Dirt.  "  S«tctete  ;"  Par/c  on  Ins.  578,  585,  6,  6th 
Lond.  ed.  ;  1  Phil,  on  Ins.  577,  2d  ed.  ;  Bell's  Prin.  of  Law 
of  Scotlandj  203,  §  523,  4th  ed.  ;  &n#A'«  .For.  Med.  518  ; 
Tyrie  v.  Fletcher,  (Cowp.  669 ;)  Bermon  v.  JFoocttnVg-e, 
(Dowg-.  789  ;)  The  Amicable  Society  v.  Bolland,  (4  BligVs 
Rep.  JV.  S.  194  ;  2  Doio.  4'  Clark,  1,  5.  C.  j)  1  Magens  en 
Ins.  32. 

X 

jS.  Sherwood,  for  the  plaintiffs,  cited  and  commented  on  1 
P.  C.  412  ;  1  Hawtts  P.  C.  ch.  9,  §  1—6  ;   food's 
.  345  ;  4  £/.  COTTI.  189. 

By  the  Court,  NELSON,  Ch.  J.  The  question  arising  upon 
the  demurrer  is,  -whether  Comfort's  self-destruction  in  a  fit  of 
insanity  can  be  deemed  a  death  by  his  own  hand,  within  the 
meaning  of  the  policy.  I  am  of  opinion  that  it  cannot.  Since 
the  argument  of  the  case  I  have  examined  many  precedents  of 
life-policies  used  by  the  different  insurance  companies,  and  am 
entirely  satisfied  that  the  words  in  the  policy  in  question 
import  a  death  by  suicide.  Provisos  declaring  the  policy  to 
be  void  in  case  the  insured  commit  suicide,  or  die  by  his  own 
hand,  are  used  indiscriminately  by  different  insurance  compa- 
nies as  expressing  the  same  idea  ;  and  so  they  are  evidently 
understood  by  the  writers  upon  this  branch  of  the  law.  The 
policies  of  the  "  Society  for  Equitable  Assurances  upon  Lives" 
and  of  the  "  Crown  Life  Assurance  Company"  contain  the  same 
form  of  expression  as  that  employed  in  the  policy  in  question  ; 
(Ellis  on  Ins.  230, 234  ;)  and  Mr.  Ellis  refers  to  the  phraseology 
as  importing  the  usual  condition  to  be  found  in  all  policies,  though 
a  majority  of  them  probably  use  the  word  suicide.  (Id.  102.) 
That  word  is  used  in  the  policies  issued  by  the  following  com- 
panies, Viz.  the  "Royal  Exchange  and  London  Assurance," 
the  "  Westminster  Society,"  the  "  Equitable  Assurance,"  the 
"Pelican  Life  Insurance,"  (Marsh,  on  Ins.  780,)  and  the 
"  Sun  Life  Assurance  ;"  (2  McCull.  Com.  Diet.  93,  94,  Jim. 


ALBANY,  JANUARY,  1843.  75 

Breasted  ».  The  Fanners'  Loan  &  Trust  Company. 


ed.  ;)  and  it  is  said  by  the  American  editor  of  the  book  last 
cited,  (p.  95,  note,)  that  the  policies  issued  in  this  country  con- 
tain the  same  phraseology.  (See  also  3  Kent's  Com.  369.) 
Mr.  Selwyn  mentions  several  of  the  insurance  companies 
above  named,  and  others,  including  those  whose  policies  con- 
tain the  same  words  as  the  one  in  question,  and  speaks  of  the 
proviso  as  meaning,  in  all  cases,  an  act  of  suicide.  (2  Selw. 
JV.  P.  by  Wheaton,  788  to  790,  Jim.  ed.  of  '23 ;  see  also 
Smith's  Merc.  Law7  256.) 

The  connection  in  which  the  words  stand  in  the  policy 
would  seem  to  indicate  that  they  were  intended  to  express  a 
criminal  act  of  self-destruction  ;  as  they  are  found  in  conjunc- 
tion with  the  provision  relating  to  the  termination  of  the  life 
of  the  insured  in  a  duel,  or  by  his  execution  as  a  criminal. 
This  association  may  well  characterise  and  aid  in  determining 
the  somewhat  indefinite  and  equivocal  import  of  the  phrase. 
Speaking  legally  also,  (and  the  policy  should  be  subjected  to 
this  test,)  self-destruction  by  a  fellow  being  bereft  of  reason, 
can  with  no  more  propriety  be  ascribed  to  the  act  of  his  cwn 
hand,  than  to  the  deadly  instrument  that  may  have  been  used 
for  the  purpose.  The  drowning  of  Comfort  was  no  more 
his  act)  in  the  sense  of  the  law,  than  if  he  had  been  impell- 
ed by  irresistible  physical  power ;  nor  is  there  any  greater 
reason  for  exempting  the  company  from  the  risk  assumed  in  the 
policy,  than  if  his  death  had  been  occasioned  by  such  means. 
Construing  these  words,  therefore,  according  lo  their  true,  and, 
as  I  apprehend,  universally  received  meaning  among  in- 
surance offices,  there  can  be  no  doubt  that  the  termination 
of  Comfort's  life  was  not  within  the  saving  clause  of  the 
policy.  Suicide  involves  the  deliberate  termination  of  one's 
existence,  while  in  the  possession  and  enjoyment  of  his  men- 
tal faculties.  Self-slaughter  by  an  insane  man  or  a  lunatic 
is  not  an  act  of  suicide  within  the  meaning  of  the  law. 
(4  BL  Com.  189.  1  Hole's  PI.  C.  411,  412.)  I  am  of  opin- 
ion, therefore,  that  the  plaintiffs  are  entitled  to  judgment  on 
the  demurrrer. 

Ordered  accordingly. 


76  CASES  IN  THE  SUPREME  COURT. 

Sharp  r.  Spcir. 


SHARP  and  others  vs.  SPEIK. 

Every  statute  in  derogation  of  the  rights  of  property,  or  that  takes  away  the  estata 
of  a  citizen,  ought  to  be  construed  strictly.  Per  BRONSON,  J. 

The  delegation  of  a  right  to  take  private  property  without  the  owner's  consent, 
cannot  be  made  out  by  doubtful  inferences  from  powers  relating  to  other  sub- 
jects. Nothing  short  of  express  words,  or  necessary  implication,  will  answer  the 
purpose.  Per  BRONSON,  J. 

This  doctrine  applies  to  a  municipal  corporation  claiming  the  right,  either  by  taxa- 
tion or  otherwise,  to  divest  individuals  of  their  property  without  their  consent. 

A  power  given  to  a  municipal  corporation  to  sell  lands  for  taxes  imposed  thereon, 
does  not  authorize  a  sale  for  taxes  which,  by  the  charter,  arc  to  be  imposed  upon 
owners  and  occupants  merely,  and  not  upon  their  lands.  Per  BRONSON,  J. 

Nor  will  a  power  given  to  sell  for  taxes,  authorize  a  sale  for  a  mere  assessment  for 
benefit. 

The  distinction  between  a  tax,  properly  so  called,  and  an  assessment,  stated  and 
considered.  Per  BRONSON,  J. 

The  eighth  section  of  the  act  of  1824  amending  the  charter  of  the  village  of  Brook- 
lyn, after  giving  the  trustees  power  to  construct  wells  and  pumps  within  certain 
districts,  and  to  cause  the  expense  to  be  assessed  among  the  owners  and  occu- 
pants of  Jots  intended  to  be  bcnefitted  thereby,  authorized  the  assessments  t3  be 
collected  by  distress  of  goods  and  chattels  :  Held  that,  upon  an  assessment  un. 
der  this  section,  the  trustees  could  not  sell  real  estate,  though  another  section  ex- 
pressly gave  the  power  of  selling  for  "  any  tax  of  any  description  on  lands." 

Every  statute  authority  in  derogation  of  the  common  law,  to  divest  the  title  of 
one,  and  transfer  it  to  another,  must  bs  strictly  pursued,  or  the  title  will  not  pass. 
Per  BRONSON,  J. 

One  claiming  title  to  real  estate  in  virtue  of  a  sale  made  to  him  by  a  municipal 
corporation  for  unpaid  taxes,  must,  in  ejectment  by  the  former  owner,  assume 
the  onus  of  showing  that  every  thing  has  been  regularly  done  by  the  corporation 
which  the  statute  makes  essential  to  the  due  execution  of  their  power  to  sell. 
Per  BRONSON,  J. 

It  matters  not  that  it  may  be  difficult  for  the  purchaser  to  comply  with  such  a  rule  ; 
for  it  is  his  business  to  collect  and  preserve  all  the  facts  and  muniments  upon  which 
the  validity  of  his  title  depends.  Per  BRONSON,  J. 

The  recitals  in  the  conveyance  of  the  corporation  to  the  purchaser  are  not  evi- 
dence against  the  former  owner,  but  the  facts  recited  must  be  established  by 
evidence  aliunde.  Per  BRONSON,  J. 

If,  by  the  statute  under  which  the  sale  took  place,  the  corporation  was  only  au- 
thorized to  lay  the  tax  after  the  presentation  of  a  petition  signed  by  a  majority 
of  persons  of  a  designated  class,  and  the  purchaser  omit  to  show  that  those  who 
signed  the  petition  were  a  majority,  &c.  he  will  fail  in  making  title. 

So,  scmble,  should  the  purchaser  omit  to  prove  that  the  petition  was  genuine. 


ALBANY,  JANUARY,  1343.  77 


Sharp  v.  Spcir. 


The  decision  of  the  officers  of  the  ci;rn«»ration  who  arc  to  act  cm  rodi  petition,  that 
it  is  signed  by  a  majority,  cannot  be  made  available  as  a  judicial  determination 
of  the  fuct. 

Wlicrc  power  is  given  to  a  village  corporation  to  impose  an  improvement  tax  vpon 
the  lands  of  persons  intended  to  be  bcncfittcd,  and  to  ecll  the  game  in  care  o! 
nonpayment,  the  assessment  should  dcrcribo  the  lands ;  and  if  a  rale  bo  mado 
under  an  assessment  which  docs  cot  describe  or  even  mention  any  land,  the  pur. 
chaser  will  acquire  no  title. 

So,  if  the  corporation  bs  required  by  its  charter  to  publish  an  advertisement,  previ- 
ous to  the  sale,  requiring  the  owner  of  such  lands  to  pay  the  tax,  or,  in  default, 
that  they  will  be  Bold  &c.,  and  tlio  advertisement  published  neither  describes 
the  lands  sufficiently,  nor  names  the  owner. 

EJECTMENT,  for  a  triangular  lot  of  land  in  the  city  of  Brook- 
lyn, tried  before  KENT,  C.  Judge,,  at  the  Kings  circuit,  in  Sep- 
tember, 1841.  Jacob  M.  &  John  M.  Hicks,  being  seized  in 
fee  of  the  premises  in  question,  conveyed  the  same  in  fee  to 
John  Sharpe  in  September,  1818.  In  February,  1820,  John 
Sharpe  conveyed  the  premises  in  fee  to  his  mother,  Mary 
Sharpe.  He  had  previously  quit  claimed  the  premises,  with 
two  other  lots — one  on  the  opposite  corner  of  the  same  streets — 
to  his  said  mother.  Mary  Sharpe  died  in  1823,  leaving  the 
said  John  Sharpe  her  only  surviving  child  and  heir  at  law,  and 
having  by  her  last  will  devised  all  her  real  estate  to  the  chil- 
dren of  her  son  John  Sharpe.  The  plaintiffs  are  those  children. 
Their  father  died  in  1825.  On  this  proof  the  plaintiffs  rested. 

The  defendant  set  up  a  title  under  an  assessment  and  sale 
for  making  a  well  and  pump  in  Willow-street.  He  gave  in 
evidence  a  petition  as  follows  :  "  To  the  trustees  of  the  village 
of  Brooklyn.  The  petition  of  the  subscribers,  owners  and  oc- 
cupants of  property  on  Willowr-street,  respectfully  shewcih, 
that  there  is  no  public  well  in  their  immediate  vicinity."  The 
petitioners  then  go  on  to  state  the  necessity  for  a  well  and 
pump  in  Willow-street,  between  Clark  and  Picrpont  streets, 
and  pray  that  immediate  measures  may  be  taken  to  construct 
the  same.  The  petition  is  dated  5th  of  October,  18i?5,  and  it 
purports  to  have  been  signed  by  seven  individuals,  of  whom  the 
defendant  was  one.  The  petition  was  received  by  the  trustees 
on  the  14th  of  October,  1825,  and  referred  to  the  well  end  pump 
committee.  On  the  28th  of  the  same  month  the  trustees  re- 


78 


CASES  IN  THE  SUPREME  COURT. 


Sharp  ».  Spcir. 


solved,  that  the  prayer  of  the  petitioners  "  be  and  the  same  is 
hereby  granted,  and  that  the  well  and  pump  committee  be  au- 
thorized to  contract  for  having  the  same  done."  On  the  same 
day  they  passed  a  resolution  "  that  the  assessors  be  directed  to 
make  an  assessment  for  digging  the  well  in  Willow-street,  be- 
tween Clark  and  Pierpont  streets."  The  defendant  also  gave 
in  evidence  a  document  as  follows  : 

"  To  Jeremiah  Wells,  William  A.  Sale  and  Benjamin 
Meeker,  assessors  of  the  village  of  Brooklyn,  in  the  county  of 
Kings.  You  are  hereby  directed  to  assess  the  sum  of  five  hun- 
dred and  ninety-nine  dollars  and  seventy-five  cents  to  pay  for 
the  well  and.  pump  No.  29,  situate  in  Willow-street,  between 
Clark-street  and  Love-lane,  in  manner  following,  viz.:  as  a  per- 
manent  district,  all  the  property  fronting  on  Willow-street  be- 
tween Clark-street  and  Love-lane,  and  as  being  cut  of  the  dis- 
trict, for  the  benefit  which  the  property  will  at  present  derive 
from  said  well,  the  three  new  brick  buildings  fronting  on 
Hicks-street  and  the  framed  house  of  Mrs.  Johnson,  Pierpont- 
street,  in  proportion  as  nearly  as  may  be  to  the  advantage 
which  the  respective  owners  and  occupants  of  said  property 
shall  be  deemed  to  acquire  from  said  well  and  pump.  Dated 
December  19, 1825.  By  order  of  the  board  of  trustees.  (Signed) 
John  Doughty,  president  pro  tern.  John  Dikeman,  clerk." 
"  .Assessment  cf  well  district  JVb.  29. 

O....--1T--1 1          1  1  ft'   O 


Samuel  Jackson, 
George  Hicks,     -     - 
Robert  C.  Cornell,   - 
Henry  Beekman, 
,  C  Henry  Waring,     5,20 

Lessees5Mr.Codwise,        6,20 
T.  I.  Chew,    -    -    - 
Spear,  ------ 

Sharp,  -     -     -     -     - 

Decost,      -     -     -     - 

G.  C.  Langdon,  -     - 
Rogers,     -     -     -     - 

Fitch, 

I.  &  I.  M.  Hicks,     - 

Benjamin  Meeker,  /  Assessors>» 

Jeremiah  Wells,     S 


pd. 
pd. 
pd. 


-  paid 
pel. 


pd. 
pd. 
pd. 
pd. 
pd. 


112  32 

50 
08 


41 


1C 


43 
19 
41 
37 
45 
35 
26 


60 


40 
24 
68 
76 
CO 
44 
76 
36 


ALBANY,  JANUARY,  1343. 


Sharp  v.  Spcir. 


On  the  23d  of  Decetober,  1825,  a  resolution  was  passed  by  the 
trustees  as  follows  :  "  The  assessors  having  returned  an  assess- 
ment for  building  a  well  and  pump  between  Clark-street  and 
Love-lane  j  resolved ,  that  the  same  is  hereby  ratified  and  con- 
firmed, and  that  the  collector  be  authorized  to  collect  the  same." 
On  the  same  day  a  v/arrant  issued  to  the  collector  to  collect 
the  assessments.  On  the  3d  of  February,  1826,  the  trustees 
resolved,  "  that  the  collector  be  directed  to  collect  the  tax  of 
well  and  pump  district  No. ,  for  the  well  in  Willow- 
street  ;"  and  on  that  day  a  second  warrant  issued  to  the  collec- 
tor to  collect  the  assessments. 

On  the  10th  of  March,  1826,  the  trustees  resolved  "  that  the 
assessors  be  directed  to  aid  the  collector  in  describing  the  seve- 
ral pieces  of  lands,  &c.  on  which  the  general  assessment  re- 
mains unpaid,  in  order  that  he  may  make  a  return  of  the  same 
according  to  law,  so  that  the  same  may  be  sold  &c."  It  was 
proved — the  affidavit  being  lost — that  about  the  23d  of  July, 
1827,  the  collector  made  the  necessary  affidavit  that  several 
assessments  for  different  improvements  remained  unpaid,  and 
among  others,  the  assessment  in  question — "  Sharp,  19,76." 
On  the  same  day  the  trustees  passed  a  resolution  for  the  sale 
of  the  lands.  The  resolution  recited  that  the  collector  had 
made  affidavit  that  "  the  following  assessments"  remained  un- 
paid. Then  followed  a  long  list  of  assessments  for  various 
improvements,  and  among  the  number — "  From  Mrs.  SJiarpe  en 
property  in  Willow-street,  for  making  a  well  and  pump  in 
Willow-street,  19,76."  It  was  further  recited,  that  some  of 
the  persons  assessed,  "  viz.  Patrick  Coughran,  Charles  Mahon, 
Mrs.  SiiarpC)  and  William  Jackson,  cannot  upon  diligent  en- 
quiry be  found  in  said  village."  It  was  then  resolved  that  the 
attorney  of  the  board  be  directed  to  advertise  for  sale  pursuant 
to  law,  "  the  several  pieces  of  land  whereon  the  said  assess- 
ments have  been  laid  as  aforesaid,  excepting  &c.,  and  to  sell  the 
same  for  payment  of  the  said  assessments  with  interest,  costs 
and  charges." 
The  attorney  of  the  board  gave  a  notice  of  sale  which  was  pub- 


£0  CASES  IN  THE  SUPREME  COURT. 

Sharp  v.  Speir. 

lished  in  a  newspaper  at  Brooklyn  for  three  months,  as  fol- 
lows :  "  Whereas  there  is  now  due  and  unpaid  from  the  seve- 
ral persons  hereinafter  named  the  several  sums  of  money  here" 
iir.ifter  mentioned  for  taxes  and  assessments  assessed  upon 
property  owned  or  occupied  by  them  respectively  in  the  vil- 
lage of  Brooklyn  for  the  several  objects  of  benefit  or  improve- 
ment herein  specified,  to  wit,  [among  others]  No.  8,  for  mak- 
ing a  well  and  pump  in  Willow-street— From  Mrs.  Sharp,  assess- 
ed en  land  in  Willow -street,  near  Clark-street,  containing  on  said 
Willow-street  thirty-Jive  feet,  $19,76.  Therefore  notice  is 
hereby  given  to  the  several  owners  or  occupants,"  to  pay  the 
several  amounts,  together  with  interest,  costs  and  charges,  on  or 
before  the  8th  day  of  November,  1827,  and  that  in  default  of 
payment  the  land  would  be  sold  on  that  day  for  the  lowest  term 
of  years  for  which  any  person  would  take  the  same  and  pay 
the  charges.  On  the  8th  of  November,  the  lot  in  question  was 
sold  to  the  defendant  for  a  term  of  twenty  years,  and  he  paid 
the  charges,  amounting  to  $32,86.  On  the  same  day  the  cor- 
poration executed  to  the  defendant  a  declaration  of  the  sale,  in 
which  the  lot  was  truly  described  as  being  in  the  form  of  a  tri- 
angle, bounding  on  Willow-street  thirty-eight  feet,  on  Clark- 
street  one  hundred  and  thirteen  feet,  and  on  lands  owned  by 
Henry  Waring.  The  plaintiffs  also  owned  another  lot  on  the 
opposite  corner,  bounded  on  two  sides  by  Willow  and  Clark 
streets,  and  being  within  the  assessment  district.  They  also 
owned  a  third  lot  near  Clark-street,  but  not  fronting  on  Willow- 
street. 

On  this  state  of  facts  the  judge  charged  the  jury  that  the 
plaintiffs  were  entitled  to  recover,  and  the  defendant  excepted. 
Verdict  for  the  plaintiffs.  The  defendant  now  moved  for  a 
new  trial  on  a  bill  of  exceptions. 

J.  Greenwood,  for  the  defendant. 
E.  Sandford,  for  the  plaintiffs. 


ALBANY,  JANUARY,  1843. 


Sharp  r.  Spcir. 


By  the  Court,  BEONSON,  J.  As  the  plaintiffs  made  out  a 
perfect  title  to  the  property,  it  is  only  necessary  to  examine  the 
claim  set  up  by  the  defendant  under  the  assessment  and  sale 
for  making  a  well  and  pump  in  Willow-street.  The  first  en- 
quiry will  be,  whether,  assuming  all  the  proceedings  to  have 
been  regular,  there  was  any  legal  authority  for  selling  the 
luiul.  It  has  become  so  common  of  late  to  take  private  prop- 
erty in  one  form  or  another  without  the  consent  of  the  owner, 
that  corporations  are  not  always  very  careful  to  look  at  their 
charters ;  or  if  they  are  examined,  the  powers  conferred  are 
construed  very  liberally.  But  the  right  to  take  private  prop- 
erty in  any  form  without  the  consent  of  the  owner,  is  a  high 
prerogative  of  sovereignty,  which  no  individual  or  corporation 
can  exercise  without  an  express  grant.  The  power  may  be 
delegated,  but  the  delegation  must  plainly  appear.  It  cannot 
be  made  out  by  doubtful  inferences  from  powers  relating  to 
other  subjects.  Nothing  short  of  express  words,  or  necessary 
implication,  will  answer  the  purpose. (a) 

The  village  of  Brooklyn  was  incorporated  in  1816,  the  char- 
ter was  amended  in  1824,  and  these  laws  were,  with  some 
modifications,  reduced  into  one  act  in  1827.  (Stat.  o/"1816, 
p.  90;  1824,  p.  224;  1827,  p.  127.)  The  act  of  1816  pro- 
vided for  levying  taxes  upon  the  freeholders  and  inhabitants 
of  the  whole  village,  but  not  for  making  assessments  within 
any  more  limited  district.  The  act  of  1824  authorized  the 
trustees  to  order  and  direct  the  pitching,  paving,  altering, 
amending  and  cleansing  of  streets  within  the  village,  and  to 
cause  the  expense  of  conforming  to  such  regulations  to  be  as- 
sessed among  the  owners  and  occupants  of  the  houses  and  lots 
intended  to  be  benefitted  thereby ;  and  the  trustees  were  au- 
thbrized,  by  warrant  under  their  hands  and  seals,  to  levy  the 
assessment  by  distress  and  sale  of  the  goods  and  chattels  of 


(a)  See  Doe,  ex  dem.  Ltxnon,  v.  Chunn,  (1  Blackf.  Rep.  336 ;)  as  to  which,  how. 
ever,  qttcre. 

VOL.  IV.  11 


82  CASES  IN  THE  SUPREME  COURT. 

Sharp  v.  Speir. 

the  owner  or  occupant  who  should  make  default  in  payment. 
(§  3.)  By  the  eighth  section  of  that  act,  the  trustees  were  au- 
thorized to  divide  the  village  into  well  and  pump  districts,  to 
provide  wells  and  pumps,  and  to  assess  and  collect  the  ex- 
penses of  those  works  in  the  same  manner  as  was  provided  in 
relation  to  street  assessments  by  the  third  section  of  the  act. 
Thus  far  it  is  quite  clear  that  there  is  no  power  to  sell  lands 
for  making  wells  and  pumps.  The  assessments  are  to  be  col- 
lected by  distress  and  sale  of  the  goods  and  chattels  of  the 
persons  assessed. 

But  it  is  said  that  the  power  to  sell  lands  for  these  assess- 
ments may  be  found  in  the  seventh  section  of  the  act,  which 
provides,  "  that  whenever  any  tax  of  any  description  on  lands 
or  tenements  in  the  said  village  shall  remain  unpaid,"  and  the 
collector  shall  make  affidavit  "  that  the  owner  or  owners  of 
the  premises  on  which  the  same  is  imposed"  cannot  be  found,  or 
that  he  has  not  sufficient  personal  estate  in  the  village  whereon 
the  tax  can  be  levied,  the  trustees  may  take  order  for  adver- 
tising in  a  newspaper  for  the  space  of  three  months,  "  thereby 
requiring  the  owners  of  such  lands  and  tenements  respectively" 
to  pay  the  tax,  and  that  in  case  of  default,  "such  lands  and 
tenements"  will  be  sold ;  "  and  if,  notwithstanding  such  no- 
tice," the  tax  shall  not  be  paid,  "  then  it  shall  and  may  be  law- 
ful for  the  said  trustees  to  cause  such  lands  and  tenements  to 
be  sold  at  auction  for  a  term  of  years."  Now,  the  first  remark 
upon  this  section  is,  that  it  only  authorizes  the  sale  of  lands  for 
the  payment  of  a  tax  ;  and  although  it  extends  to  a  tax"  of  any 
description,"  still  it  includes  nothing  but  a  tax  of  some  kind. 
Our  laws  have  made  a  plain  distinction  between  taxes,  which 
are  burdens  or  charges  imposed  upon  persons  or  property  to 
raise  money  for  public  purposes,  and  assessments  for  city  and 
village  improvements,  which  are  not  regarded  as  burdens,  but 
as  an  equivalent  or  compensation  for  the  enhanced  value  which 
the  property  of  the  person  assessed  has  derived  from  the  im- 
provement. This  distinction  had  been  made  in  several  statutes 
long  before  Brooklyn  was  incorporated,  and  was  fully  exem- 


ALBANY,  JANUARY,  1843. 


Sharp  c.  Speir. 


plified  in  the  Matter  of  the  Mayor  of  New-York ,  (11  John.  R. 
77.)  There,  several  churches  in  the  city  of  New-York  had  been 
assessed  for  the  supposed  benefit  which  they  would  derive  from 
the  enlarging  of  Nassau-street,  and  they  denied  the  legality  of 
the  assessment,  because  it  had  been  expressly  enacted  that  no 
church  or  place  of  public  worship  "  shall  be  taxed  by  any 
law  of  this  state."  But  the  objection  was  overruled,  and  the 
exemption  claimed  by  the  churches  denied,  on  the  ground 
that  the  assessment  could  not  properly  be  regarded  as  a  tax. 
This  case  apparently  goes  the  whole  length  of  deciding  the 
one  now  before  us.  The  authority  is  to  sell  for  a  tax,  and  the 
defendant  shows  nothing  but  an  assessment  for  a  village  im- 
provement. In  Bleecker  v.  Ballou,  (3  Wend.  263,)  the  ques- 
tion was  upon  an  assessment  for  pitching  and  paving  a  street, 
and  Savage,  Ch.  J.  said,  "  there  is  no  doubt  that  the  assessment 
in  question  was  not  a  tax,  that  being  a  sum  imposed,  as  is  suppo- 
sed, for  some  public  object."(6) 

I  may  remark  here,  that  the  charter  provides  in  terms  for 
laying  taxes  for  various  purposes,  and  there  is,  therefore,  no 
necessary  implication  that  assessments  were  intended  to  be  in- 
cluded in  the  word  "  tax,"  which  is  the  only  word  in  the  seventh 
section  from  which  the  power  can  be  inferred. 

A  corporation  must  show  a  grant,  either  in  terms  or  by  ne- 
cessary implication,  for  all  the  powers  which  it  attempts  to  ex- 
ercise ;  and  especially  must  this  be  done,  when  it  claims  the 
right,  by  taxing  or  otherwise,  to  divest  individuals  of  their 
property  without  their  consent.  In  Beaty  v.  Knowler,  (4  Pe- 
ters, 152,)  which  was  the  case  of  a  corporation  sale  of  lands 
for  taxes,  Mr.  Justice  McLean  remarked,  "  that  a  corporation 
is  strictly  limited  to  the  exercise  of  those  powers  which  are 
specially  conferred  upon  it.  The  exercise  of  the  corporate 
franchise,  being  restrictive  of  individual  rights,  cannot  be  ex- 


(6)  Sec  farther,  u  to  the  meaning  of  the  word  "  tax,"  TTu  Overteert  $c.  of  Ami. 
nto  T.  Overseen  <J-c.  of  Stanford,  (6  John.  Rep.  92.) 


84  CASES  IN  THE  SUPREME  COURT. 

Sharp  v.  Speir. 

tended  beyond  the  letter  and  spirit  of  the  act  of  incorporation." 
And  he  subsequently  adds :  "  The  power  to  impose  a  tax  on 
real  estate,  and  to  sell  it  where  there  is  a  failure  to  pay  the  tax, 
is  a  high  prerogative,  and  should  never  be  exercised  where  the 
right  is  doubtful."  The  justice  of  the  remark  is  obvious.  Ev- 
ery statute  derogatory  to  the  rights  of  property,  or  that  takes 
away  the  estate  of  a  citizen,  ought  to  be  construed  strictly. 
It  should  never  have  an  equitable  construction.  (  Vanhorne's 
lessee  v.  Dorrance,  2  Dall.  316.) 

The  act  of  1824  was  drawn  and  passed  long  after  the  dis- 
tinction had  been  taken  between  assessments  and  taxes,  and  , 
those  who  drew  and  those  who  passed  it  must  be  supposed  to  have 
known  that  an  assessment  for  the  benefits  conferred  by  a  village 
improvement  was  not  included  in  the  word  "  tax."     Had  the 
legislature  intended  that  lands  should  be  sold  to  satisfy  assess 
ments,  it  cannot  be  doubted  that  they  would  have  said  so. 

A  further  examination  of  the  statute  will  go  to  confirm  what 
has  already  been  said.  The  corporation  is  not  empowered  to 
sell  lands  in  those  cases  where  there  is  in  fact  a  tax,  unless  it 
be  a  tax  on  lands,  and  not  a  mere  personal  charge.  The  words 
are — "  Whenever  any  tax  of  any  description  on  lands  or  tene- 
ments in  the  said  village  shall  remain  unpaid,"  the  trustees  may 
"  cause  such  lands  and  tenements  to  be  sold."  (§  7.)  On 
looking  at  the  eighth  section  which  authorizes  an  assessment 
for  wells  and  pumps,  in  connection  with  the  third  section  to 
which  the  eighth  refers,  it  will  be  seen  that  the  assessment  is 
not  upon  the  lands,  but  upon  "  the  owners  or  occupants  of  the 
houses  and  lots  intended  to  be  benefitted  thereby,"  and  the 
money  is  to  be  levied  "  by  distress  and  sale  of  the  goods  and 
chattels  of  such  owner  or  occupant."  This  language  does  not 
go  beyond  the  creation  of  a  debt  or  duty  upon  the  owner  in 
respect  of  the  land,  which  he  must  satisfy  at  the  peril  of  losing 
his  goods.  It  does  not  create  a  charge  on  the  land. 

I  have  not  overlooked  the  fact  that  street  assessments  are,  by 
the  third  section  of  the  act,  made  a  lien  or  charge  on  the  land. 
Whether  that  fact,  taken  in  connection  with  the  power  confer- 


ALBANY,  JANUARY,  1843.  85 

Sharp  v.  Spcir. 

red  by  the  seventh  section,  will  authorize  a  sale  of  lands  for 
street  assessments,  we  are  not  now  called  upon  determine.  If 
the  power  be  conceded,  it  does  not  follow  that  there  may  be  a 
sale  of  lands  for  a  well  end  pump  assessment.  The  eighth 
section,  which  relates  to  wells  and  pumps,  makes  no  mention 
of  the  seventh,  which  provides  for  a  sale  of  hinds  ;  and  it  only 
refers  to  the  third  for  the  purpose  of  avoiding  the  repetition 
of  details  in  relation  to  the  mo:le  of  collecting  the  assessment. 
The  substance  of  the  provision  is,  that  assessments  for  wells 
and  pumps  may  be  made  and  collected  "  in  the  same  manner  as 
is  provided  for  assessing  and  collecting"  street  expenses  "  by 
the  third  section  of  this  act."  That  "  manner,"  as  we  have 
already  seen,  is,  "  by  distress  and  sale  of  the  goods  and  chat- 
tels" of  the  person  assessed. 

These  assessment  sales  for  real  or  fancied  improvements 
sometimes  fall  very  heavily  upon  the  owners  of  city  and  vil- 
Isie  property.  The  lots  which  are  sold  are  usually  vacant, 
and  consequently  produce  no  revenue.  If  there  were  an  oc- 
cupant, there  would  of  course  be  a  person  to  discharge  the 
burden.  The  loss  resulting  from  a  sale  most  commonly  falls 
upon  absent  owners,  who  have  no  notice  until  it  is  too  late — 
upon  women,  who  are  not  accustomed  to  watch  the  moveim-nts 
of  a  corporation  and  its  officers — and  upon  children,  who wnnt 
discretion  to  defend  and  protect  their  rights.  And  although 
the  power  to  sell  lands  without  regard  to  age,  sex  or  condition, 
has  been  very  liberally  conferred  by  our  city  and  village  char- 
ters, it  may  well  be  that  the  legislature  did  not  in  this  instance 
deem  it  expedient  to  make  such  a  grant.  They  supposed  it 
enough  that  owners  and  occupants  were  made  liable  where 
they  could  be  reached  by  distress  and  sale  of  their  goods,  and 
did  not  regard  it  as  a  very  great  evil  if  the  absent  owner  of  an 
unoccupied  lot  should  escape  the  payment  of  an  assessment  for 
a  well  and  pump  which  could  not  then  and  might  never  be  of 
any  importance  to  him.  But  whatever  reasons  may  have  influ- 
enced the  legislature,  we  feel  no  difficulty  in  saying  that  this 
land  has  been  sold  without  legal  authority. 


86  CASES  IN  THE  SUPREME  COURT. 

Sharp  v.  Speir. 

The  act  of  1827  was  in  force  at  the  time  the  sale  was  made. 
But  as  the  22d  section  of  that  act  is  substantially  the  same  as 
the  7th  section  of  the  act  of  1824,  it  requires  no  separate  con- 
sideration. 

We  might  stop  here.  But  there  are  other  questions  in  the 
cause,  which,  like  the  one  already  considered,  were  elaborately 
discussed  at  the  bar,  and  both  parties  appeared  to  wish  that  we 
should  pass  upon  them.  I  will  now  assume,  what  has  just 
been  denitd,  that  this  charter  confers  authority  to  sell  lands  for 
a  well  and  pump  assessment,  and  then  the  enquiry  will  be 
whether  the  defendant  has  made  out  such  an  execution  of  the 
power  as  is  necessary  to  establish  his  title  under  the  sale. 
In  the  solution  of  this  question,  it  will  be  proper  at  the  outset 
to  lay  down  a  few  principles  which  must  have  an  important 
bearing  upon  the  result. 

Every  statute  authority,  in  derogation  of  the  common  law, 
to  divest  the  title  of  one  and  transfer  it  to  another,  must  be 
strictly  pursued,  or  the  title  will  not  pass.  This  is  a  mere  na- 
ked power  in  the  corporation,  and  its  due  execution  is  not  to 
be  made  out  by  intendment :  it  must  be  proved.  It  is  not  a 
case  for  presuming  that  public  officers  have  done  their  duty, 
but  what  they  have  in  fact  done  must  be  shown.  The  recitals 
in  the  conveyance  are  not  evidence  against  the  owners  of  the 
property,  but  the  fact  recited  must  be  established  by  proofs 
aliunde.  As  the  statute  has  not  made  the  conveyance  prima 
facie  evidence  of  the  regularity  of  the  proceedings,  the  fact 
that  they  were  regular  must  be  proved,  and  the  onus  rests  on 
the  purchaser.  He  must  show,  step  by  step,  that  every  thing 
has  been  done  which  the  statute  makes  essential  to  the  clue  ex- 
ecution of  the  power.  It  matters  not  that  it  may  be  difficult 
for  the  purchaser  to  comply  with  such  a  rule.  It  is  his  busi- 
ness to  collect  and  preserve  all  the  facts  and  muniments  upon 
which  the  validity  of  his  title  depends.  (Rex  v.  Croke,  Cowp. 
26  ;  Williams  v.  Peyton,  4  Wheat.  77  ;  Ronkendorf  v.  Taylor, 
4  Peters,  349 ;  Jackson  v.  Shepard,  7  Cowen,  88  j  Jltkins  v. 
Rinnan,  20  Wend.  241 ;  Thatcher  v.  Powell,  6  Wheat.  119 ; 


ALBANY,  JANUARY,  1843.  87 

Sharp  r.  Spcir. 

Jackson  v.  Esty,  7  Wend.  148 ;  The  People  v.  Mayor  Ifc.  ofN.  Y. 
2  Hill)  9  ;  Matter  of  Mount  Morris  Square,  id.  14.)  (c)  These 
cases  and  those  to  which  they  refer  will  be  sufficient  to  justify 
all  that  has  been  said  concerning  the  necessary  requisites  for 
making  out  a  title  in  the  defendant. 

Let  us  now  recur  once  more  to  the  power.  The  8th  section 
of  the  act  of  1824  provides,  that  it  shall  be  lawful  for  the 
trustees  "  on  the  application  in  writing  of  a  majority  of  the 
persons  owning  property  intended  to  be  benefitted  thereby,  or 
whose  property  shall  be  assessed  for  the  payment  of  the  ex- 
penses attending  the  same,  to  divide  the  said  village  into  pump 
and  well  districts."  The  defendant  produced  a  petition  having 
seven  names  subscribed  to  it,  but  he  gave  no  evidence  to  show 
that  the  signatures  were  genuine,  nor  did  he  prove  that  they 
were  owners  of  property  within  the  proposed  district.  But 
this  is  not  all.  The  petition  was  only  signed  by  seven  individ- 
uals, and  fourteen  were  assessed  for  the  improvement.  The 
petitioners  were  not  "  a  majority  of  the  persons  owning  prop- 
erty intended  to  be  benefitted."  In  answer  to  this  it  is  said, 
that  some  persons  were  assessed  whose  property  lay  beyond 
the  permanent  district.  But  an  assessment  upon  their  property 
was  expressly  directed  by  the  trustees,  and  the  inference  is  ir- 
resistible that  they  were  persons  "  intended  to  be  benefitted" 
by  the  improvement.  Again,  the  petition  was  for  a  well  in 
Willow,  between  Clark  and  Pierpont  streets,  and  that  petition 
was  granted  ;  but  when  the  trustees  ordered  an  assessment,  the 
district  was  altered,  and  bounded  on  one  side  by  Love-lane  in- 
stead of  Pierpont-street.  How  many  persons  would  have  been 
assessed  if  the  district  on  which  the  petition  was  based  had  re- 
mained unaltered,  we  are  not  informed.  The  fact  that  a  ma- 
jority petitioned  for  the  improvement  lies  at  the  foundation  of 


(c)  Seo  Coicen  £  Hill's  Notet  to  Phil.  Ev.  1289  et  stq.;  also  per  COWEN,  J.  JJ 
Waldron  v.  M'Comb,  (1  Hill,  111,  114,  115;)  per  BRONSON,  J.  in  Bloom  v.  Bur. 
dick,  (id.  130,  141,  2.) 


CASES  IN  THE  SUPREME  COURT. 


Sharp  v.  Spcir. 


the  whole  proceeding;  and, unless  that  fact  can  be  established, 
the  whole  is  void  from  beginning  to  end.  The  onus  was  upon 
the  defendant,  and  he  has  failed  to  furnish  the  proof. 

The  defendant  insists  that  the  petition  conferred  jurisdiction 
on  the  trustees  to  lay  out  a  well  and  pump  district  &c.,  pro- 
vided they  should  judge  that  a  majority  of  the  persons  intended 
to  be  benefitted  had  signed  ;  that,  by  granting  the  petition  and 
proceeding  with  the  work,  the  trustees  adjudicated  upon  the 
question,  and  determined  that  a  majority  had  petitioned  ;  and 
that  this  judgment  of  the  trustees  is  conclusive  upon  all  persons 
so  long  as  it  remains  unreversed.  It  is  impossible  to  maintain 
that  iii  this  matter  the  trustees  were  sitting  as  a  court  of  justice, 
with  power  to  conclude  any  one  by  their  determination.  True, 
they  were  called  upon  to  decide  for  themselves  whether  a  case 
had  arisen  in  which  it  was  proper  for  them  to  act.  But  they 
acted  at  their  peril.  They  could  not  make  the  occasion  by 
resolving  that  it  existed.  They  had  power  to  proceed  if  a  ma- 
jority petitioned,  but  without  such  a  petition  they  had  no  au- 
thority whatever.  They  could  not  create  the  power  by  re- 
solving that  they  had  it.  In  Graves  v.  Otis,  (2  Hill,  466,)  the 
trustees  had  the  necessary  petition  in  point  of  numbers,  and,  so 
far  as  any  one  could  see  on  looking  at  the  paper,  all  was  regu- 
lar. But  it  turned  out  that,  after  two  persons  had  signed  the 
petition,  a  material  alteration  had  been  made  in  it,  without 
their  consent ;  and  as  these  two  names  were  necessary  to 
make  out  the  requisite  number,  it  was  held  that  the  trustees 
had  no  jurisdiction.  This  seems  to  be  a  hard  case,  and  so  it 
was;  but  it  stands  upon  a  principle  which  cannot  be  given  up 
with  safety  to  the  public.  Corporations  and  their  officers,  when 
they  interfere  with  the  rights  of  individuals,  and  especially 
when  they  attempt  to  divest  and  transfer  the  title  to  real  estate, 
must  show  that  the  very  case  has  arisen  in  which  they  were 
authorized  to  proceed.  Showing  that  they  have  been  misled 
by  forgery  will  not  aid  them.  Honest  error  cannot  confer 
power. 

If  the  petition  had  been  sufficient,  and  the  trustees  had  thus 


ALBANY,  JANUARY,  1843.  39 


Sharp  v.  Speir. 


acquired  jurisdiction  to  act,  then  whether  they  would  proceed 
or  not,  was  a  question  addressed  to  their  discretion  ;  and  their 
decision  upon  that  question  could  not  be  reviewed  in  this  ac- 
tion, nor,  indeed,  in  any  other.  But  without  a  sufficient  peti- 
tion they  had  no  authority  to  act.  There  is  little,  if  any  thing, 
of  a  judicial  nature  in  the  proceedings  of  corporations  to  take 
lands  either  by  way  of  assessments  or  for  public  use.  (The 
People  v.  The  Mayor  fyc.  of  New-York,  2  Hill,  9  ;  Matter  of 
Mount  Morris  Square,  2  Hill,  14.)  It  is  the  mere  execution 
of  a  power. 

I  will  now  assume  that  the  trustees  acquired  jurisdiction, 
and  then  the  enquiry  will  be  whether  all  the  necessary  steps 
have  been  taken  to  transfer  the  plaintiffs'  title  to  the  defendant. 

I  will  not  stop  to  enquire  whether  the  district  was  properly 
laid  out,  but  proceed  at  once  to  the  consideration  of  the  assess- 
ment.    The  expenses  of  the  improvement  were  to  be  assessed 

II  among  the  owners  and  occupants  of  all  the  houses  and  lots 
intended  to  be  benefitted  thereby."     (Act  of  1824,  ^  8,  3.) 
And  there  is  no  authority  to  sell  except  where  a  "  tax  [or  an 
assessment,  as  has  been  conceded  for  the  purposes  of  this  branch 
of  the  argument]  of  any  description  on  lands  or  tenements  in 
the  said  village  shall  remain  unpaid."     In  order  to  lay  a  tax 
"  on  lands  or  tenements,"  it  is  necessary  that  the  particular 
lands  should  be  mentioned  and   described.     Now  what  was 
done  here  1     Without  noticing  any  other  defects  in  the  extra- 
ordinary document  which  is  called  an  assessment,  it  is  sufficient 
to  say,  that  the  assessors  have  not  even  mentioned  or  alluded 
to  any  "  lands  or  tenements"  from  beginning  to  end.     In  seve- 
ral instances  enough  was  not  done  to  create  even  a  personal 
charge.     Take  for  example  the  following:  "  Sharp,  19,76." 
What  "  Sharp"  was  intended  1     After  the  trustees  had  directed 
the  assessors  to  aid  the  collector  in  describing  the  lands — in 
other  words,  to  do  what  should  have  been  done  when  the  as- 
sessment was  made — the  trustees  passed  a  resolution  reciting 
that  a  tax  was  due  from  "  Mrs.  Sharpe ;"  but  what  particular 
lady  of  that  name  was  intended  was  not  explained.     If  they 

VOL.  IV.  12 


90  CASES  IN  THE  SUPREME  COURT. 

Sharp  v,  Speir. 

meant  Mrs.  Mary  Sharpe,  who  once  owned  the  land,  she  died 
in  1823,  two  years  before  the  well  and  pump  had  been  thought 
of.  At  the  time  these  proceedings  were  commenced  the  land 
belonged  to  the  seven  minor  grandchildren  of  Mary  Sharpe, 
•who  are  the  plaintiffs  in  this  action.  The  fact  that  Mrs.  Sharpe 
had  been  long  dead,  enabled  the  collector  to  make  the  necessary 
affidavit  that  she  could  not  "  upon  diligent  enquiry  be  found  in 
said  village."  Had  the  plaintiffs,  the  owners  of  the  land,  been 
named  in  the  assessment,  there  is  no  reason  to  suppose  that  the 
necessary  affidavit  could  have  been  made,  or  that  the  tax  would 
not  have  been  paid,  and  the  land  saved.  The  assessment 
neither  created  a  charge  on  the  land,  nor  a  debt  or  duty  upon 
the  plaintiffs. 

If  the  defect  in  the  assessment  could  be  afterwards  supplied, 
it  was  never  done.  After  the  assessors  had  been  required  to 
aid  the  collector  in  describing  the  lands,  and  after  the  collec- 
tor had  made  his  affidavit,  the  trustees  only  made  a  slight  ap- 
proximation towards  describing  the  land  which  they  intended  to 
sell.  They  stated  that  an  assessment  was  due  "  from  Mrs.  Sharp, 
on  property  in  Willow-street."  In  what  part  of  Willow-street, 
on  which  side  of  it,  and  how  much  property  1  Was  it  one  lot 
or  ten,  and  what  were  the  dimensions  1  It  is  impossible  to 
call  this  a  description  of  any  property  in  particular.  There 
was  no  description  of  the  lot  in  question  until  we  get  down  to 
the  conveyance  made  on  the  sale.  The  owners  were  left  in 
the  dark  until  it  was  too  late  to  save  the  land. 

This  leads  to  the  mention  of  the  last  defect  in  the  proceed- 
ings which  I  shall  notice  ;  to  wit,  that  the  land  wras  not  sufficient- 
ly described  in  the  advertisement.  When  a  tax  on  lands  or  tene- 
ments remains  unpaid,  the  trustees  may  take  order  for  adver- 
tising the  same,  requiring  the  owner  of  such  lands  to  pay  the 
tax,  or  in  default,  that  such  lands  will  be  sold,  and  if  the  tax  is 
not  paid  within  the  specified  time,  such  lands  may  be  sold.  (Sess. 
L.  of  1824,  p.  227,  ^  7.)  The  principal  object  in  requiring  the 
advertisement  was,  to  bring  home  notice  to  the  owner  that  his 
land  was  to  be  sold  if  he  did  not  pay  the  charge  upon  it.  And  on 


ALBANY,  JANUARY,  1S43.  91 

Sharp  v.  Speir. 

ly  such  land  can  be  sold  as  has  been  advertised.  Now  what  was 
this  notice  ?  It  neither  named  the  plaintiffs,  nor  did  it  describe 
the  property.  Among  the  unpaid  assessments  for  various  im- 
provements in  the  village,  it  mentions  that  there  was  due 
"  from  Mrs.  Sharp,  assessed  on  land  in  Willow-street  near 
Clark-street,  containing  on  said  Willow-street  thirty-five  feet, 
$19,76."  The  notice  does  not  state  in  what  part  of  Willow- 
street  the  property  was  situate,  except  that  it  was  "  near  Clark- 
street,"  nor  does  it  mention  the  side  of  the  street.  The  plain- 
tiffs owned  property  on  both  sides.  Again,  it  is  thirty-five 
feet  on  Willow-street,  but  the  notice  does  not  state  how  long 
the  lot  was  the  other  way,  or  whether  it  was  in  the  form  of  a 
square,  a  parallelogram,  or  a  triangle.  And  besides,  there  is 
not  only  a  want  of  description,  but  the  notice  was  directly  cal- 
culated to  mislead  the  owners.  It  speaks  of  a  lot  thirty-five 
feet  on  Willow-street,  and  the  lot  sold  was  thirty-eight  feet 
front  on  that  street.  It  mentions  land  "  near  Clark-street," 
and  the  lot  sold  was  on  Clark-street,  by  which  one  side  of  one 
hundred  and  thirteen  feet  was  bounded.  No  one  who  owned 
this  corner  lot  would  imagine  that  he  was  in  danger  from  see- 
ing that  the  corporation  proposed  to  sell  a  lot  near  Clark- 
street,  especially  as  there  was  nothing  else  in  the  advertise- 
ment to  correct  the  error.  It  was  so  natural  and  easy  to  de- 
scribe this  as  a  corner  lot,  or  a  lot  bounded  on  two  sides  by  the 
two  streets,  that  it  is  difficult  to  resist  the  inference  that  the 
corporation  either  did  not  know  what  land  would  be  sold  at 
the  time  the  notice  was  given,  or  that  pains  were  taken  to  mis- 
lead the  owners,  and  throw  them  off  their  guard.  But  how- 
ever that  may  be,  the  notice  was  insufficient. 

On  each  and  all  of  these  grounds  we  are  of  opinion  that  the 
sale  was  void,  and  conferred  no  title  on  the  purchaser. 

We  were  told  by  the  defendant's  counsel  that  the  conclusion 
at  which  we  have  arrived  would  disturb  many  titles.  If  that 
be  so  we  cannot  help  it.  If  there  have  been  many  sales  for 
making  wells  and  pumps  in  Brooklyn,  I  can  only  say  that 


92  CASES  IN  THE  SUPREME  COURT. 

Sharp  v.  Johnson. 

there  have  been  many  wrongs,  and  we  have  no  choice  but  to 
redress  such   injuries  when   they  are  judicially  brought  be 
fore  us. 

New  trial  denied. 


SHARP  vs.  JOHNSON. 

When  lands  are  taken  under  a  statute  authority,  in  derogation  of  the  common  law, 
every  requisite  of  the  statute  having  the  semblance  of  benefit  to  the  owner 
must  be  strictly  complied  with. 

One  claiming  title  to  real  estate  in  virtue  of  a  sale  made  to  him  by  a  municipal 
corporation  for  an  unpaid  assessment  of  the  expense  of  opening  a  street,  must, 
in  ejectment  by  the  former  owner,  assume  the  onus  of  proving  that  the  corpora- 
tion has  complied  with  all  the  requisites  of  its  charter  both  in  respect  to  laying 
out  the  street  and  making  the  assessment. 

If,  by  the  charter,  the  corporation  was  not  authorized  to  lay  out  the  street  and  pro- 
ceed to  the  assessment  except  upon  "  application  in  writing  of  a  majority  of  the 
persons"  liable  to  be  assessed  therefor,  and  the  purchaser  do  not  show  that  those 
who  signed  the  petition  constituted  a  majority  &c.,  he  will  fail  in  making  title. 

So,  if  it  be  not  shown  that  those  who  signed  the  application  were  persons  liable  to 
be  assessed  for  the  street.  Semble. 

Where  the  expense  of  laying  out  a  street  is  required  to  be  assessed  "  among 
the  owners  &.c.  of  the  several  houses  and  lots  intended  to  be  benefitted,"  each 
owner  must  be  assessed  by  himself,  and  in  reference  to  bis  particular  property. 

If  power  be  given  to  a  municipal  corporation  to  impose  an  improvement  tax  upon 
the  lands  of  persons  intended  to  be  benefitted,  and  to  sell  the  same  in  case  of 
non-payment,  the  assessment  should  describe  the  lands  so  that  they  can  be  iden- 
tified, or  the  sale  will  be  void.  Per  BRONSON,  J. 

And  where  the  corporation  making  such  sale  is  required  to  give  a  certain  notice  after 
the  assessment  and  before  the  sale,  with  a  view  of  enabling  persons  interested 
to  come  in  and  object,  the  sale  will  be  deemed  invalid  unless  the  party  seeking 
to  uphold  it  prove  that  the  requisite  notice  was  given. 

So,  where  it  is  required  that,  before  selling  lands,  the  corporation  collector  shall 
make  affidavit  of  the  owner's  inability  to  pay  the  tax  out  of  his  personal  estate 
&c.,  and  no  proof  is  given  that  such  affidavit  was  made. 

If  the  charter  require  notice  to  be  given  to  the  owner  of  lands  over  which  a 
street  is  to  be  laid,  and  that  the  corporation  shall  endeavor  to  treat  and  agree 
with  him  for  a  reasonable  compensation,  before  proceeding  to  an  appraisement 
of  his  damages  &c. ;  a  notice  not  served  upon  the  owner  but  put  up  on  the 
lands  will  be  inoperative,  though  it  appear  they  were  unoccupied. 


ALBANY,  JANUARY,  1643.  c,3 

Sharp  v.  Johnson. 

Nor  will  fuch  notice  be  deemed  valid,  even  fhou'.d  it  appear  that  the  owner  could 

not  be  found  after  diligent  enquiry.    Per  Buoxso.v,  J. 
Until  notice  has  been  properly  given  in  such  caee,  the  corporation  have  no  authori. 

ty  for  calling  out  the  appraisers. 
An  appraisc-ment  of  lands,  consisting  of  village  lots  owned  by  different  persons, 

will  be  deemed  irregular,  if  instead  of  ascertaining  the  value  of  the  lots  rcspec 

lively,  the  appraisers  estimate  the  whole  by  blocks;  especially  where  the  value  of 

the  lots  in  each  block  varies. 
The  case  of  Coles  v.  The  Trustees  of  Williamsburgh,  (10  Wend.  659,)  adverted  to 

and  explained. 
A  power  given  to  a  municipal  corporation  to  sell  lands  for  taxes,  will  not  authorize 

a  Rale  for  a  mere  assessment  for  benefit. 
And  even  if  it  be  provided  that  the  assessment  shall  be  "  a  lien  on  the  land," 

yucre ,  whether  the  lien  can  be  enforced  without  the  aid  of  a  court  of  equity. 

EJECTMENT,  tried  before  KENT,  C.  Judge,  at  the  Kings  cir- 
cuit, in  September,  1841.  The  action  was  brought  to  recover 
an  undivided  seventh  part  of  a  Jot  of  land  in  the  village  of 
Williamsburgh,  Kings  county.  The  plaintiff  shewed  a  title 
in  fee  to  the  share  which  she  claimed  as  one  of  the  seven  chil- 
dren and  heirs  at  law  of  John  Sharpe,  who  died  seized  in  1825. 
The  defence  rested  on  an  assessment  and  sale  of  the  land  for 
the  expenses  of  opening,  pitching  and  regulating  North  Third- 
street  in  the  village  of  Williamsburgh.  Lands  were  taken  for 
the  street,  and  the  assessment  was  made  for  covering  this  and 
other  expenses.  On  the  3d  of  November,  1827,  a  petition 
was  presented  to  the  trustees  signed  by  fourteen  persons,  who 
described  themselves  as  "  inhabitants  in  and  about  North  Third- 
street."  They  represented  in  the  petition,  that  the  street  was 
unregulated,  and  concluded  as  follows :  "  Your  petitioners 
woultl  therefore  suggest  the  propriety  of  having  the  said  street 
opened  and  regulated  immediately,  and  your  petitioners  in  duty 
bound  will  ever  pray."  On  the  3d  of  December  following,  the 
trustees  recited  this  as  a  petition  that  the  street  be  "  opened, 
pitched  and  regulated,"  and  resolved  that  "the  prayer  of  the 
petitioners  be  granted,"  unless  cause  be  shown  &c.  On  the 
7th  of  January,  1828,  no  cause  being  shown,  it  was  unquali- 
fiedly resolved  that  the  prayer  of  the  petitioners  be  granted. 
On  the  3d  of  March,  1828,  the  trustees  resolved  "that  a  com- 


94  CASES  IN  THE  SUPREME  COURT. 

Sharp  v.  Johnson. 

mittee  of  two  be  appointed  to  take  the  necessary  steps  for 
opening  North  Third-street  according  to  the  prayer  of  the  pe- 
tition ;  and  that  the  said  committee  have  power,  and  it  shall  be 
their  duty  to  do  all  that  is  preliminarily  required  to  be  done  by 
the  trustees  in  and  by  the  24th  section  of  the  act  of  incorpora- 
tion, and  report  their  proceedings  to  the  board ;"  and  there- 
upon a  committee  of  two  was  appointed.  Under  date  of 
March  12th,  the  minutes  of  the  board  contained  the  following 
entry  :  "  The  committee  appointed  at  a  former  meeting  to 
take  the  necessary  steps  for  opening  North  Third-street  re- 
ported, that  they  had  called  on  the  proprietors  of  land  on 
North  Third-street,  and  endeavored  to  treat  with  them  ;  that 
they  could  not  find  some,  and  that  difficulty  occurred  in  making 
arrangements  with  others.  Whereupon,  on  motion,  it  was  re- 
solved that  a  jury  be  called  by  the  president  as  the  law  directs, 
and  that  notice  be  put  upon  the  lands  of  all  unknown  owners." 

Lands  were  taken  for  the  street,  and  on  the  8th  of  April, 
1828,  two  justices  and  a  jury  appraised  the  land  and  damages 
on  the  street.  In  the  appraisal,  no  owners  or  occupants,  and  no 
lots  or  quantity  of  land  were  mentioned.  The  jury  say,  they 
"  estimate  the  value  of  the  land  on  the  first  block  of  420  feet, 
including  First-street  from  the  river  on  North  Third-street  on 
each  side,  at  three  dollars  per  foot  running  measure."  And 
so  of  other  blocks,  though  at  different  prices. 

On  the  4th  of  June  following,  the  assessment  to  pay  expen- 
ses was  made.  In  this,  no  lots  were  mentioned,  but  the  asses- 
sors proceeded  by  blocks.  Against  some  of  the  blocks  they 
put  down  three,  four  or  more  names,  or  "  unlcnown  owners." 
Against  each  name  or  unknown  owner,  they  put  down  in  a 
column  headed  "  No.  of  feet,"  some  particular  number — the 
lowest  was  25,  and  the  highest  429.  In  a  second  column  they 
put  down  the  amount  assessed,  under  the  head  of  "  Whole 
amount  of  assessment."  Next  was  a  column  with  the  head  of 
"  Land  xralued,"  and  fourth,  a  column  headed  "  Balance  to  be 
collected."  The  whole  number  of  persons  named  was  thirty- 
eight,  and  there  were  six  cases  of  "  unknown  owners."  The 


ALBANY,  JANUARY,  1843.  95 

Sharp  v.  Johnson 

plaintiff  was  not  mentioned  in  the  assessment.  Against  every 
assessment  there  was  an  allowance  for  land  taken,  but  always 
less  than  the  assessment.  * 

Prior  to  this  time,  and  as  early  as  1814,  the  village  had  been 
laid  out  into  lots,  and  a  map  made  of  the  same.  One  of  tne 
assessors  testified  that  they  had  no  map  to  make  the  assess- 
ment by ;  that  he  took  a  tape-line  to  measure  with,  and  en- 
quired for  owners  and  took  their  names,  and  made  measure- 
ments running  measure  ;  that  there  was  a  map,  but  it  was  nev- 
er submitted  to  the  assessors.  The  clerk  of  the  board  testified 
that  this  assessment  list  was  in  the  usual  form,  with  this  differ- 
ence, that  here  the  property  is  assessed  in  blocks,  and  in  oth- 
er cases  it  is  assessed  by  lots,  which  are  specified  in  the  assess- 
ment. 

On  the  18th  of  June,  1828,  a  warrant  issued  to  collect  the  as- 
sessments ;  and,  under  date  of  27th  of  October  following,  the 
corporation  minutes  have  an  entry  as  follows  :  "  Mr.  Bush, 
the  collector,  having  made  and  filed  with  the  board  his  affidavit 
as  to  the  non-collection  of  assessments  to  unknown  owners  of 
property  in  North  Third-street,  it  was  on  motion  resolved, 
that  such  property  be  advertised  to  be  sold  according  to  law." 
No  affidavit  was  produced,  nor  was  its  absence  accounted  for. 
Notice  that  a  certain  piece  of  land  would  be  sold  for  the  assess- 
ment on  the  10th  day  of  December,  1829,  was  published  for 
three  months.  The  piece  of  land  described  in  the  notice  was 
429  feet  long  on  the  street,  and  extended  back  to  the  centre  of 
the  block.  No  owner  or  "  unknown  owner"  was  mentioned  in 
the  advertisement,  nor  did  it  state  the  amount  of  the  assess- 
ment. On  the  day  appointed  for  the  sale,  a  term  of  49  years 
in  this  piece  of  land  was  sold  to  Lemuel  Richardson,  under 
whom  the  defendant  claims,  and  a  conveyance  was  executed  to 
the  purchaser.  The  conveyance  states  the  whole  parcel  to 
have  been  sold,  "  excepting  from  the  above  parcel  of  land,  lots 
No.  81,  83,  89,  91,  93,  97,  99,  101  and  103,  upon  which  the 
assessment  has  been  paid." 

In  the  assessment,  the  parcel  of  land  of  429  feet  front  was 


96  CASES  IN  THE  SUPREME  COURT. 

Sharp  v.  Johnson. 

put  down  to  "  unknown  owners,"  and  the  balance  of  assess- 
ment to  be  collected  was  $79,83.  The  conveyance  stated  the 
assessment  on  the  premises  sold,  at  $27,30. 

The  judge  instructed  the  jury  that  the  plaintiff  was  entitled 
to  recover,  and  the  defendant  excepted.  Verdict  for  the  plain- 
titf.  The  defendant  now  moved  for  a  new  trial  on  a  bill  of  ex- 
ceptions. 

J.  Greenwood,  for  the  defendant. 
E.  Sandfordj  for  the  plaintiff. 

By  the  Court)  BRONSON,  J.  For  some  of  the  principles 
which  must  guide  our  determination,  it  will  be  sufficient  to  re- 
fer to  the  case  of  Sharp  v.  Speir,  (ante,  p.  76,)  which  has  just 
been  decided.  Although  the  corporation  has  not  been  very 
explicit  in  telling  us  how  much  they  intended  to  do,  it  suffi- 
ciently appears  from  the  case  that  North  Third-street  had  been 
previously  laid  out  upon  the  village  map,  and  that  at  this  time 
the  corporation  attempted  to  accomplish  two  things — first,  to 
acquire  the  necessary  lands  for  the  purpose  of  opening  the 
street,  and  then  to  assess  the  price  of  the  land  taken  and  -the 
other  necessary  expenses  ot  opening,  pitching  and  regulating 
the  street,  upon  other  lands.  A  portion  of  the  land  belonging 
to  the  children  and  heirs  of  John  Sharpe,  of  whom  the  plaintiff 
is  one,  was  taken  for  the  street,  and  the  residue  was  assessed 
and  sold  for  the  benefit  which  they  were  supposed  to  derive 
from  the  improvement.  The  children  have  thus  lost  all — at 
least  for  a  long  term  of  years ;  but  if  the  proceedings  were 
authorized  by  law,  and  have  been  properly  conducted,  they 
must  bear  the  misfortune.  On  the  other  hand,  it  was  the  busi- 
ness of  the  purchaser  and  those  claiming  under  him,  to  examine 
the  power  and  regularity  of  the  proceedings  j  and  if  their  title 
is  found  defective,  they  will  have  no  just  ground  for  complaint, 
unless  it  be  against  the  corporation. 

The  first  question  will  be  upon  the  proceedings  for  taking 


ALBANY,  JANUARY,  1843.  97 

Sharp  t.  Jolmaon. 

that  portion  of  the  plaintiff's  land  which  is  occupied  by  the 
street.  The  village  of  Williamsburgh  was  incorporated  in 
April,  1827.  \Stat.  of  1827,  p.  270.)  The  24th  section  of 
the  act  provides,  that  "  the  trustees  of  said  village  shall  or  may, 
on  an  application  in  writing  of  a  majority  of  the  persons  own- 
ing the  property  descnLi'd  in  any  such  application,  and  who  are 
intended  to  be  beneliited  thereby,  or  whose  property  shall  be 
assessc-il  lor  the  payment  of  the  expense  attending  the  same, 
and  upon  such  application,  they  are  hereby  fully  authorized 
and  empowered  to  widen  and  alter  all  public  roads,  streets  and 
highways  already  laid  out  in  said  village"  &c.  "  and  al»  to  lay 
out  and  make  such  other  roads  and  streets,  conformable  to 
the  map  of  said  village,  as  they  shall  think  necessary  or  con- 
venient for  the  inhabitants."  The  section  then  goes  on  to  pro- 
vide for  acquiring  the  necessary  lands  "  through  which  such 
new  roads  or  streets  are  to  run."  The  section  is  rather  a 
clumsy  performance  in  the  way  of  legislation ;  but  from  this 
and  other  provisions  in  the  act,  taken  in  connection  with  the 
facts  disclosed  by  the  case,  I  infer  that  a  map  had  been  made 
of  the  village  prior  to  1827  on  which  the  streets  had  been  laid 
down,  some  of  which  were  then  open,  while  others  only  ap- 
peared upon  paper.  This  section  was  intended  to  pr  vide  for 
altering  the  streets  already  made,  and  for  opening  others  "  con- 
formable to  the  map."  North  Third-street  had  been  laid  out 
on  the  map,  and  it  was  now  proposed  to  open  it.  That  could 
only  be  done  on  such  an  application  in  writing  as  has  al- 
ready been  mentioned.  Let  us  see  what  authority  the  trustees 
had  to  proceed.  They  had  a  paper  signed  by  fourteen  per- 
sons, in  which  they  "  suggest  the  propriety  of  having  the  street 
opened."  If  this  can  be  called  "  an  application"  to  have  the 
street  opened,  there  are  other  difficulties  which  are  insuperable. 
Although  the  petitioners  say  that  they  are  "  inhabitants  in  and 
about  North  Third-street,"  they  do  not  "  suggest"  that  they 
own  a  single  foot  of  land  in  the  street,  or  elsewhere  j  nor 
is  any  land  "  described"  in  the  application,  as  the  statute  re- 
quires. There  are  only  fourteen  petitioners,  while  there  are 
VOL.  IV.  13 


98        CASES  IN  THE  SUPREME  COURT. 


Sharp  v.  Johnson. 


forty-four  different  assessments.  And  although  some  names 
appear  more  than  once  in  the  assessment,  nearly  thirteen  hun- 
dred feet  of  front  on  the  street  is  set  down  as  belonging  to 
"  unknown  owners."  How  many  there  may  have  been  of 
this  unfortunate  class  of  citizens,  it  is  impossible  to  say.  The 
burden  lay  on  the  defendant  of  showing  that  the  application 
came  from  "  a  majority  of  the  persons  owning  the  property," 
and  he  has  not  only  failed  to  show  it,  but  the  evidei  ce  is  near- 
ly or  quite  conclusive  that  a  majority  did  not  apply.  The 
trustees,  therefore,  had  no  authority  whatever  to  open  the 
street, rand  the  plaintiff's  land  in  the  site  of  the  street  has  not 
been  taken  according  to  law.  She  owns  it  still. 

There  is  a  further  difficulty  about  the  taking  of  land  for  the 
street.     The  24th  section  provides  that  when  the  trustees  shall 
require  any  land  for  that  purpose,  "  they  shall  give  notice  there- 
of to  the  owners  or  proprietors  of  such  lands,  or  his  or  their 
agent  or  legal  representative,  to  the  end  that  reasonable  satis- 
faction may  be  made  for  all  such  lands  as  shall  be  taken  and 
employed  for  the  use  or  uses  aforesaid,  and  the  said  trustees 
may  and  are  required  to  treat  and  endeavor  to  agree  with  the 
owners  and  persons  interested  therein,  or  his  or  her  or  their 
agent  or  legal  representative,  and  if  in  case  any  such  owners 
or  proprietors  shall  refuse  to  treat  for  a  reasonable  compensa- 
tion, in  manner  aforesaid,  then  and  in  such  case  the  true  value 
of  the  land  and  damages  shall  be  set  and  appraised  by  two  jus- 
tices of  the  peace  of  the  county  of  Kings,  by  the  oath  of  twelve 
freeholders  j"  and  the  payment  or  tender  of  the  money  "  shall 
be  a  full  authority  to  the  said  trustees  to  cause  the  said  lands 
to  be  converted  for  the  purposes  aforesaid."     There  is  no  pre- 
tence that  the  trustees  gave  notice  to  the  plaintiff,  or  to  any  of 
the  other  heirs  of  John  Sharpe,  or  to  any  agent  or  representa- 
tive of  theirs,  that  the  land  was  required  ;  nor  that  the  trustees 
made  any  attempt  to  treat  or  agree  with  the  owners,  or  any  of 
them  ;  and  until  that  had  been  done,  there  was  no  authority  for 
calling  a  jury.     (Rex  v.  Croke,  Cowp.  26  ;  Rex  v.  Manning, 
1  Bur.  377  ;  Rex  V;  Mayor  of  Liverpool,  4  id.  2244.) 


ALBANY,  JANUARY,  1843.  99 

Sharp  v.  Johnson. 

But  il  is  said  that  the  plaintiff  and  the  other  heirs  of  John 
Sharpe  were  "  unknown  owners,"  and  therefore  the  trustees 
could  neither  give  notice,  nor  treat  with  them.  I  answer,  it 
was  the  business  of  the  trustees  to  find  out  the  owners,  and 
there  is  no  reason  to  suppose  that  it  could  not  have  been  done, 
and  that  too  with  very  little  trouble.  John  Sharpe  died  in  the 
city  of  New-York  only  two  years  before  these  proceedings 
were  instituted,  and  he  was  in  possession  of  the  property  at  the 
time  of  his  death.  If  it  had  been  thought  a  matter  of  the 
slightest  importance  to  follow  the  statute,  and  regard  the  rights 
of  owners,  these  heirs  would  have  been  found,  instead  of  re- 
solving that  "  notice  be  put  upon  the  lands  of  all  unknown 
owners."  Whether  a  white  wand  was  actually  put  up  upon 
the  lands  to  let  the  owners  known  that  they  were  in  danger, 
does  not  appear,  nor  is  it  a  matter  of  any  importance.  When 
the  statute  sajs,  you  shall  give  notice  to  and  treat  with  the 
owner,  it  cannot  be  satisfied  by  sticking  up  a  notice  on  the 
land.  That  is  not  a  sufficient  ambassador. 

Let  it  be  granted  that  these  "  unknown  owners"  could  not 
have  been  found  even  if  a  diligent  inquiry  had  been  instituted, 
and  what  then  1  It  does  not  follow  that  their  land  might  be 
taken.  The  difficulty  of  complying  with  a  statute  does  not 
repeal  it.  The  trustees  were  acting  under  a  naked  power. 
If  the  power  was  too  strait  for  practical  utility,  they  should 
have  asked  a  new  grant ;  or  if  they  did  not  choose  to  do  that, 
they  should  have  answered  the  petitioners,  "  We  have  no  au- 
thority to  take  any  man's  land  for  a  street  until  after  we  have 
given  him  notice,  and  endeavored  to  treat  with  him." 

Whether  an  application  to  these  heirs  would  have  been  like- 
ly to  result  in  a  treaty  or  not,  can  be  a  matter  of  no  impor- 
tance. It  would  at  least  have  served  the  purpose  of  giving 
them  notice,  and  then  their  land  might  have  been  saved. 
When  lands  are  to  be  taken  under  a  statute  authority,  in  dero- 
gation of  the  common  law,  every  requisite  of  the  statute  having 
the  semblance  of  benefit  to  the  owner  must  be  strictly  complied 
with.  (Jltkins  v.  Rinnan,  20  Wend.  241.)  Although  this 


ICO  CASES  L\  THE  SUPREME  COURT. 


Sharp  ».  Johnson. 


<' or  trine  may  have  been  often  disregarded  by  city  and  village 
torpoiations,  we  think  it  both  good  law  and  good  morals. 
The  legislature  has  not  been  too  careful  in  protecting  the  rights 
of  the  land  owner.  On  the  contrary,  a  wide  door  has  been 
opened  for  taking  private  property  without  the  consent  of  the 
owner,  whenever  his  neighbors  happened  to  think  that  the 
public  interest  required  him  to  sell.  None  of  the  barriers 
which  remain  ought  to  be  thrown  down. 

w 

Williamsburgh  is  a  road  district,  and  the  trustees  have  all 
t'.ie  powers  within  the  village  which  formerly  belonged  to  the 
commissioners  of  highways  of  the  town  of  Bushwick.  (Sess.  L. 
of  '27,  p.  275,  §  17.)  But  that  does  not  bring  the  case  within  the 
decision  in  Graves  v.  Otis,  (2  Hill,  466  ;)  for  the  street  was  not 
laid  out,  nor  the  damages  ascertained  in  the  manner  prescribed 
by  the  act  relating  to  the  highways  on  Long  Island.  (Sess.  L. 
of  1830,  p.  51,  §  47—53.)  The  trustees  evidently  proceeded, 
or  rather  professed  to  proceed,  under  the  24th  section  of  the 
charter. 

There  is  still  another  difficulty  with  this  attempt  to  take  land 
for  the  street.  The  justices  and  jury  valued  the  land  and  dam- 
ages by  blocks,  one  of  420  feet  front,  the  second  460  feet,  the 
third  510  feet,  the  fourth  460  feet,  and  the  fifth  without  saying 
how  many  feet  front  "  running  measure"  there  was  in  it.  The 
first  block  was  valued  at  $3  per  foot,  the  second  at  $2,75,  the 
third  at  $2,50,  and  the  fourth  and  fifth  at  $2  per  foot  front. 
Now  as  the  land  decreased  in  value  from  the  starting  point  to 
the  other  end  of  the  street,  it  is  morally  certain  that  all  of  the 
lots  in  the  same  block  were  not  of  equal  value,  and  consequent- 
ly the  owner  of  one  lot  either  got  too  much,  or  the  owner  of 
another  lot  got  too  little.  We  do  not  understand  the  case  of 
Coles  v.  The  Trustees  of  Williamsburgh,  (10  Wend.  659,)  as 
sanctioning  this  valuation.  The  justices  and  the  jury  should 
have  proceeded  by  lots  instead  of  blocks. 

We  come  now  to  the  assessments  which  were  made  to  pay 
the  expenses  of  opening,  pitching  and  regulating  the  street, 
under  which  the  lot  in  question  was  sold.  The  trustees  of  tl  e 
village  have  authority  to  direct  "  the  pitching,  regulating  and 


ALBANY,  JANUARY,  1843.  101 

Sharp  c.  Johiuon. 

paving  the  streets  thereof,"  and  also  "  the  altering,  amending 
and  cleansing  of  any  street."  (Scss.  L.  of  '27,  p.  276,^21.)  But 
"  no  street"  "  shall  be  pitched,  paved,  altered  or  amended,  unless 
the  same  shall  be  requested  in  writing  by  a  majority  of  the  persons 
owning  the  property  intended  to  be  benefited  thereby,  or  whose 
property  shall  be  assessed  for  the  payment  of  the  expenses  attend- 
ding  the  same."  (§  22.)  And  the  24lh  section,  which  gives  au- 
thority "  to  lay  out  and  make"  streets,  contains,  as  we  have  al- 
ready seen,  a  like  restriction  upon  the  power  of  the  trustees.  The 
petition,  such  as  it  was,  on  which  the  trustees  acted,  has  al- 
ready been  noticed  on  another  branch  of  the  case.  There  is  no 
evidence  that  a  majority  of  the  land  owners  requested  this  im- 
provement, and  it  is  enough  that  the  fact  was  not  proved.  But 
there  is,  in  addition,  very  satisfactory  evidence  that  the  fact 
did  not  exist.  The  trustees  acted  without  authority,  and  their 
proceedings  were  consequently  void. 

Although  this  is  enough  to  dispose  of  the  case,  some  of  the 
other  questions  discussed  at  the  bar  ought,  perhaps,  to  be  brief- 
ly noticed.  As  to  the  lands  taken  for  the  street,  the  expenses 
were  to  be  "  assessed  among  end  upcn  the  owners  and  occu- 
pants of  the  several  houses  and  lets  intended  to  be  bentfitted." 
§25.)  And  the  other  expenses  were  to  be  assessed  "among 
the  owners  or  occupants  of  all  the  houses  and  lots  to  be  bcne- 
fitted  thereby."  The  two  provisions  are  substantially  alike, 
though  there  is  a  slight  difference  in  words.  The  property  on 
the  street  had  been  surveyed  and  divided  into  lots  of  twent}- 
five  feet  front  long  before,  and  the  lots  were  undoubtedly  own- 
ed by  different  individuals.  It  appears,  at  least,  that  the  plain- 
tiff owned  one  such  lot  in  a  block  of  429  feet  front  on  the 
street.  Now  what  was  done  1  The  assessors  were  not  fur- 
nished with  a  map,  or  any  information  concerning  who  was  to 
be  assessed  ;  but  they  were  sent  out  with  a  tape  line  to  discov- 
er as  well  as  they  could  both  lauds  and  owners.  They  m< 
urcd  and  assessed  by  blocks,  instead  of  lots,  though  as  to  some 
of  the  blocks  they  put  down  the  names  of  several  individu«..'s 
as  the  owners  of  separate  parcels.  But  when  they  came  to 


102  CASES  IN  THE  SUPREME  COURT. 

Sharp  v.  Johnson. 


the  plaintiff's  land,  her  lot  of  twenty-five  feet  front  was  lumped 
with  other  lands,  amounting  in  all  to  429  feet  front,  and  the 
whole  set  down,  to  "  unknown  owners."     The  clerk  of  the 
corporation  testifies  that  the  assessment  was  not  made  in  the 
usual  mode,  which  was  to  assess  by  lots^  instead  of  blocks, 
which  were  specified   in  the  assessment.     But  independently 
of  this  departure  from  the  usage,  it  is  impossible  to  maintain 
such  an  assessment  as  was  made  here.      Where  the  lands  in 
a  city  or  village  have  been  surveyed  and  laid  out  into  lots,  the 
owners  should  be  assessed  by  lots,  and  each  owner  should  be 
assessed  by  himself,  and  in  respect  of  his  particular  land.     (The 
King  v.  The  Trustees  of  JVortm'cA,  5  M.   $  Ellis,  563.)     It 
may  well  be  that  every  lot  in  the  same  block  is  not  of  equal 
value.     And  besides,  the  assessment  must  be  so  made  that  each 
owner  may  know  what  is  his  particular  burden,  and  be  able  to 
discharge  it  without  calling  in  the  aid  of  others.     If  this  429 
feet  front  was  properly  assessed  in  one  body,  the  corporation 
was  not  obliged  to  receive  less  than  the  whole  charge  imposed 
upon  it,  and  thus  the  plaintiff  might  have  been  compelled  to 
pay  the  assessments  upon  other  persons,  or  lose  her  own  land. 
The  statute  does  not  authorize  an  assessment  upon  owners  gen- 
erally, but  says  it  shall  be  made  "  among"  the  owners  j   and  to 
make  the  matter  still  more  clear,  it  provides  that  the  assess- 
ment shall  be  among  the  owners  of  "  the  several  houses  and 
lots."     The  assessors  might  just  as  well  have  put  down  all  the 
land  on  the  street  in  one  lump,  as  to  do  what  they  have  done 
There  was  an  utter  failure  to  comply  with  the  requirement  of 
the  statute  in  this  particular.     The  power  has  not  been  pur- 
sued, and  the  sale  consequently  conferred  no  title  on  the  pur- 
chaser. 

The  assessment  was  vicious  in  another  respect.  The  only  au- 
thority to  sell  is,  where  there  is  a  tax  "  on  lands  or  tenements." 
(Sess.  L.  of  '27,  p.  279,  §  26.)  If  the  word  "  tax"  includes  a 
street  assessment,  it  must  still  be  an  assessment  "  on  lands  or 
tenements."  Here  we  have  nothing  but  one  line  of  the  boundary 
of  any  land.  The  assessors  have  assessed  certain  sums  on  a  given 


ALBANY,  JANUARY,  1843.  103 

Sharp  v.  Johnaon. 

number  of  feet  front,  without  saying  whether  the  land  extends 
back  one  foot  or  one  hundred — whether  it  goes  quite  through 
to  the  next  street,  or  only  part  of  the  way.  '  If  they  had  re- 
ferred to  the  map,  and  mentioned  lots  as  there  laid  down,  that 
would  have  answered.  But  neither  map  nor  lots  are  mention- 
ed. I  do  not  mean  to  censure  the  assessors.  They  did,  per- 
haps, the  best  they  could  with  a  tape  line,  and  they  had  no 
other  guide. 

When  the  assessment  is  completed,  the  trustees  are  required 
to  give  fourteen  days  notice  that  the  same  will  be  ratified  and 
confirmed  within  one  month,  unless  satisfactory  objections  are 
made.  (^  21,  25.)  It  does  not  appear  that  any  notice  was 
given.  And  here  I  will  repeat,  that  the  burden  of  showing 
that  the  power  has  been  duly  executed  lies  on  the  purchaser, 
and  without  proving  it,  his  title  is  good  for  nothing. 

The  trustees  are  not  authorized  to  sell  any  land  until  the 
collector  has  made  affidavit  that  the  owner  cannot  be  found, 
or,  if  found,  that  he  has  not  sufficient  personal  estate  in  the 
village  to  pay  the  tax.  (§  26.)  No  such  affidavit  was  pro- 
duced, nor  was  its  absence  accounted  for,  if  it  ever  existed. 
If  every  thing  else  had  been  regular,  the  want  of  an  affidavit 
would  be  fatal  to  the  sale. 

I  am  weary  with  pointing  out  defects  in  these  proceedings, 
and  will  go  no  further.  I  ought  however  to  say,  that  by  as- 
suming, as  has  been  done,  that  this  corporation  might,  under 
any  circumstances,  sell  lands  for  the  payment  of  an  assessment, 
it  must  not  be  inferred  that  we  are  of  opinion  that  the  power 
exists.  There  is  no  power  to  sell  lands,  except  for  a  /ax, 
(§  26  ;)  and  although  these  street  assessments  are  made  a  lien 
on  the  land,  (§  21,  25,)  it  does  not  follow  that  the  corporation 
can  sell  the  land  without  first  going  into  chancery,  and  obtain- 
ing the  aid  of  that  court  to  enforce  the  lien.  My  impression 
is,  that  the  lien  cannot  be  enforced  at  law  ;  but  upon  that  point 
we  give  no  opinion  either  one  way  or  the  other. 

New  trial  denied. 


104  CASES  IN  THE  SUPREME  COURT. 

Goodyear  t>.  Ogden. 


GOODYEAR  vs.  OGDEN  &  PEAHL. 

A  written  instrument  acknowledging  the  receipt  of  a  quantity  of  wheat  "  in  store," 

imports  a  bailment  and  not  a  sale. 
Such  instrument  is  in  the  nature  of  a  contract,  and  therefore  not  open  to  contra. 

diction  in  the  sense  of  the  rule  applicable  to  receipts  proper  ;  though  its  import 

may  be  explained  by  parol  evidence  of  the  usage  among  dealers  in  wheat.    Per 

COWEN,  J. 
Where  parol  evidence  is  given  of  a  usage  to  treat  such  instruments  as  importing  a 

sale,  it  is  for  the  jury  to  say  whether  the  usage  be  so  universal  and  well  known 

as  to  raise  the  presumption  that  it  entered  into  and  formed  a  part  of  the  con- 

tract in  question. 
A  new  trial  will  not  be  granted  on  the  sole  ground  of  the  verdict  being  against  the 

weight  of  evidence,  except  upon  payment  of  costs. 
The  case  of  Green  v.  Burke,  (23  Wend.  490,)  commented  on,  and  the  reporter's 

abstract  of  it  corrected. 

TROVER  for  a  quantity  of  wheat,  tried  at  the  Cayuga  circuit 
in  March,  1842,  before  MOSELEY,  C.  Judge.  The  plaintiff 
gave  in  evidence  several  receipts  signed  by  the  defendants  as 
partners,  all  of  which  were  in  the  following  form,  except 
as  to  dates  and  amounts  : 

"  Genoa,  Sept.  22d,  1841. 

Reed,  of  Ives  Goodyear  40  r£  bushels  wheat. 

In  store.  D.  OGDEN  &  Co." 

It  appeared  that  the  defendants  were  engaged  in  the  business 
of  buying  and  shipping  wheat  to  the  eastern  market  ;  and  the 
question  was,  whether  the,  wheat  in  controversy  was  delivered 
by  way  of  bailment  or  sale.  The  judge  held  the  receipt  not 
conclusive  that  the  delivery  was  by  way  of  bailment  ;  where- 
upon the  parties  went  into  evidence  to  explain,  and  even  con- 
tradict its  meaning.  The  explanatory  evidence  was,  that  a 
receipt  in  such  a  form  customarily  meant  a  sale.  The 
contradictory  evidence  was,  the  language  and  conduct  of 
the  plaintiff  implying  that  a  sale  was  intended.  Among 
other  things  it  appeared  that  the  plaintiff  aided  in  put- 
ting the  wheat  into  a  common  bin  where  there  were  seve- 
ral thousands  of  bushels  of  wheat  belonging  to  others.  The 


ALBANY,  JANUARY,  1S43.  105 

Goodyear  t>.  Ogdcn. 

judge  left  the  explanatory  and  contradictory  facts  to  the 
jury,  who  found  in  favor  of  the  plaintiff.  The  defendants 
now  moved  for  a  new  trial  on  a  fase. 

L.  Walker,  for  the  defendants. 
David  Wright,  for  the  plaintiff, 

By  the  Court,  COWEN,  J.  The  receipt  seems  plainly  to  im- 
port a  bailment.  It  was  a  contract,  or  in  the  nature  of  a  con- 
tract ;  and  therefore  not  open  to  contradiction  in  the  sense  of 
the  rule  applicable  to  receipts  proper.  In  this  view,  the  con- 
tradictory evidence  was  not  admissible. (o) 

The  import  of  the  terms  was  controllable  by  the  usage 
among  wheat  dealers — such  as  the  defendants  were — if  that 
usage  was  so  universal  and  well  known  that  the  jury  were 
bound  to  consider  it  parcel  of  the  contract.  But  of  this  they 
were  the  judges. 

Supposing  the  words  to  be  ambiguous,  and  so  open  to  ex- 
planation by  circumstances,  these  were  not,  I  think,  of  that 
clear  and  decisive  character  which  call  on  us  to  disturb  the 
verdict.  It  is  singular,  and  scarcely  compatible  with  a  bail- 
ment, that  the  plaintiff  should  have  mixed  the  wheat  with 
thousands  of  bushels  belonging  to  others  or  to  the  defendants. 
But  the  evidence  was  not  entirely  explicit  as  to  the  mixture. 
The  wheat  was  put  in  a  common  bin  ;  but  that  did  not  neces- 
sarily destroy  the  means  of  identifying  it.  The  words  common 
bin  are  themselves  ambiguous.  It  might  have  been  so  arrang- 
ed, although  common,  that  the  wheat  of  each  customer  could 
be  distinguished.  The  question  was  one  for  the  jury,  as  was 
also  the  construction  to  be  placed  upon  the  plaintiff's  language. 
The  whole  turns  on  the  weight  of  evidence,  even  in  the  most 
favorable  view  for  the  defendants.  When  wheat  receivers 


(a)  See  Cowen  $  Hill't  Note*  to  Phil.  Ev.  p.  216, 217, 1439,  and  the  eatet  tlun 
cited. 

VOL.  IV.  14 


106  CASES  IN  THE  SUPREME  COURT. 

Goodyear  v.  Ogden. 

mean  a  sale,  they  should  express  themselves  more  clearly  than 
was  done  in  this  case.  They  should  make  out  bills  of  sale, 
or  sale  notes.  It  is,  at  best,  dealing  very  freely  with  a  writ- 
ten contract  to  receive  and  act  at  all  upon  parol  evidence 
tending  to  show  that  a  receipt  of  wheat  in  store  means  a 
sale. 

The  defendants  claim  a  new  trial  solely  on  the  weight  of 
evidence.  A  contract  worded  as  this  was,  weighs,  in  itself, 
very  heavily  against  them  ;  and  to  say  it  is  clearly  overcome,  is 
more  than  we  can  do  on  the  evidence  in  this  case. 

Having  disposed  of  the  principal  case,  a  word  is  due  to  the 
profession  in  respect  to  a  case  cited  by  the  defendants'  counsel, 
viz.  Green  v.  Burke,  (23  Wend.  490.)  This  has  of  late  been 
often  cited  as  showing  that,  though  a  verdict  be  set  aside  as 
against  the  weight  of  evidence  alone,  the  costs  are  to  abide  the 
event.  The  rule  is  otherwise,  and  nothing  is  said  upon  it  in 
the  case  cited,  one  way  or  the  other.  Nor  is  there  any  color  for 
the  suggestion  in  the  marginal  note.  A  verdict,  wrong  inform, 
was  received  at  the  circuit,  upon  which  such  an  entry  on  the 
record  as  was  due  to  the  justice  of  the  case  could  not  be  made. 
On  this  error ,  as  well  as  on  the  weight  of  evidence,  a  new  trial 
was  granted.  The  only  thing  said  of  costs,  is  in  the  direction 
for  entering  the  rule  at  the  end  of  the  case,  viz.  "  costs  to  abide 
the  event."  Where  the  verdict  is  set  aside  purely  as  against  the 
weight  of  evidence,  unmixed  with  other  reasons,  the  rule  is  as 
laid  down  by  the  chief  justice  in  The  Bank  of  Utica  v.  Ives, 
(17  Wend.  501.)  It  must  be  on  payment  of  costs. (b)  Burke 
v.  Green  involved  another  point,  on  which  I  stated  at  the  out- 
set that  a  new  trial  must  be  granted  •  and  the  point  is  also 
stated  in  the  head  note  of  the  reporter. 

New  trial  denied. (c) 


(b)  See  Graham  on  New  Trialt,  603,  and  the  catet  there  cited;   Jackson  v. 
Thurtton,  (3  Cowen,  342.) 

(c)  See  Dawson  v.  Kittle,  (pott.f.  107.) 


ALBANY,  JANUARY,  1843.  JQ7 

Dtwwn  «.  Kittle. 


DAWSON  vs.  KITTLE. 
\ 

A  memorandum  acknowledging  the  receipt  of  a  quantity  of  grain  "  on  freight," 

imports  a  bailment  and  not  a  sale. 
But  the  memorandum  may  be  shown  to  mean  a  sale  by  evidence  of  usage  among 

dealers  in  giain.     Per  NELSON,  Ch.  J. 
Such  evidence,  however,  must  be  BO  full  and  explicit  as  to  leave  no  doubt  of  the 

existence,  extent  and  meaning  of  the  usage,  and  that  the  parties  contracted  in 

reference  to  it.    Per  NELSON,  Ch.  J. 
In  general,  where  evidence  of  usage  is  given  to  control  the  construction  of  a  writ- 

ton  instrument,  the  jury  are  to  determine  its  effect 

ASSUMPSIT,  tried  at  the  Rensselaer  circuit,  in  March,  1840, 
before  CUSHMAN,  C.  Judge.  The  declaration  contained  the 
common  counts.  On  the  trial,  the  case  was  this  :  In  1838  and 
1839,  the  plaintiff  delivered  a  quantity  of  rye  and  oats  to 
Schermerhorn  &  Willsey  at  different  times,  and  took  from  them 
several  receipts — all  of  which,  except  as  to  dates  and  amounts, 
were  as  follows  :  "  Rec'd,  Schodack,  Oct.  22d,  1838,  from  Joel 
Dawson,  twenty-eight  bushels  and  twenty  pounds  of  rye  on 
freight.  (Signed)  Schermerhorn  &  Willsey."  S.  &  W.  were 
purchasers  and  freighters  of  grain,  and,  as  such,  had  been  en- 
gaged in  business  at  Schodack  Landing  for  several  years.  The 
grain  in  question  was  put  into  a  common  bin  and  mixed  with 
that  received  from  the  other  customers  of  S.  &  W.  The  defen- 
dant proved  that  S.  &  W.  assigned  all  their  property  to  him  in 
trust  for  creditors,  and  claimed  that  the  grain  belonged  to  them 
at  the  time  of  the  assignment.  The  defendant  took  possession 
of  the  grain  in  virtue  of  the  assignment,  and,  a  few  days  after- 
wards, the  plaintiff  ordered  it  to  be  sent  to  market.  The  princi- 
pal question  on  the  trial  was,  whether  the  receipts  given  to  the 
plaintiff  were  to  be  deemed  evidence  of  a  sale  to  S.  &  W.  or 
of  a  mere  bailment ;  and,  upon  this  point,  several  witnesses 
were  called  by  the  defendant  to  show  the  usage  among  dealers 
in  grain.  The  general  nature  and  effect  of  this  evidence  suffi- 
ciently appears  in  the  opinion  of  the  court.  The  jury  render- 


108  CASES  IN  THE  SUPREME  COURT. 


Dawson  v.  Kittle. 


ed  a  verdict  for  the  plaintiff,  and  the  defendant  now  moved  for 
a  new  trial  on  a  case. 

S.  Stevens,  for  the  defendant. 
JV.  Hill,  Jr.  for  the  plaintiff. 

By  the  Court)  NELSON,  Ch.  J.  The  defendant  is  the  assignee 
of  Schermerhorn  &  Willsey,  who  were  in  the  habit  of  receiv- 
ing grain  in  store  to  be  shipped  to  the  New-York  market.  As 
such  shippers,  they  received  the  plaintiff's  grain,  which  was 
deposited  with  that  of  other  customers  in  a  common  bin ;  and 
it  is  claimed  by  the  defendant  that  it  passed  to  him  under  the 
assignment.  The  material  question  is,  whether  the  title  to  the 
grain  became  vested  in  Schermerhorn  &  Willsey  previous  to  the 
assignment,  or  whether  they  received  and  held  it  under  a  mere 
contract  of  bailment. 

It  is  quite  clear  that  the  receipts  given  for  the  grain  do  not 
in  terms  or  of  necessity  import  a  sale,  but  rather  the  contrary. 
They  acknowledge  the  delivery  to  have  been  "  on  freight"  and 
nothing  more.  But  it  is  argued  that  there  was  full  proof  of 
usage  in  the  particular  trade,  which  went  to  explain  the  memo- 
randum and  establish  an  absolute  sale  of  the  grain.  I  do  not 
deny  that  the  receipts  were  open  to  explanation  by  this  species 
of  evidence  ;  (2  Stark.  Ev.  258,  9,  Am.  ed.  '37 ;  Withnell  v. 
Gartham,  6  T.  R.  398;  Bushforth  v.  Hadfield,  6  East,  519; 
Cooper  v.  Kane,  19  Wend.  386  ;)  but  it  ought  to  be  full  and 
explicit — so  clear  as  to  leave  no  doubt  that  the  parties  con- 
tracted in  reference  to  the  usage.  The  contracts  in  this  case, 
so  far  as  they  have  been  reduced  to  writing,  import  a  bail- 
ment ;  and  when  it  is  sought  to  make  them  mean  somethino 

/  <_/  Q 

more  than  appears  upon  their  face,  by  showing  the  general 
course  and  understanding  of  the  trade,  there  should  be  no 
doubt  left  as  to  the  existence,  extent  and  meaning  of  the  usage. 
Imperfect  ss  a  memorandum  may  be,  if  enough  appear  upon 
its  face  to  make  out  a  contract,  its  terms  must  prevail,  un- 


ALBANY,  JANUARY,  1843. 


Gale  v.  Mead. 


less  modified  by  clear  proof  that  these  have  a  particular  mean- 
ing attached  to  them  by  the  usage  of  trade — a  usage  known 
to  the  party  at  the  time  of  contracting,  or  which  he  is  pre- 
sumed to  have  known  and  assented  to.  The  testimony  in  this 
case  is  not  only  loose  in  respect  to  the  existence  of  the  usage 
at  the  particular  place  where  the  dealing  occurred,  but  it  is 
left  doubtful  whether,  even  if  it  existed  there  at  all,  it  af- 
forded any  evidence  of  a  sale  of  the  grain  until  the  plain- 
tiff ordered  it  to  be  sent  to  market.  Such  is  the  import  of  the 
usage  as  testified  by  some  of  the  witnesses,  and  the  direction  to 
send  to  market  does  not  appear  to  have  been  given  in  this  case 
till  after  the  assignment  to  the  defendant.  But  this  part  of 
the  case  need  not  be  further  discussed,  as  the  questions  of  fact 
arising  out  of  the  evidence  of  usage  were  submitted  to  the 
jury,  to  whom  they  properly  belonged,(a)  and  no  question  of 
law  is  raised  upon  the  charge  of  the  judge. 

New  trial  denied. (Z>) 

(a)  Sec  Cowen  $  Hilta  Notes  to  Phil.  Ev.  1408  to  1420. 
(6)  See  Goodyear  v.  Ogden  and  another,  (ante,  p.  104.) 


GALE  vs.  MEAD  and  others. 

The  unqualified  repeal  of  a  repealing  statute  revives  the  original  enactment  Per 
B  RON-SON,  J. 

Where  a  resolution  of  the  taxable  inhabitants  of  a  school  district  to  lay  a  tax  for 
building  a  school  house,  is  repealed  at  a  subsequent  meeting,  and  afterward  tho 
repealing  resolution  is  itself  repealed,  this  revives  the  original  resolution.  Per 
BRCNSON.  J. 

In  such  case,  however,  the  original  resolution  being  rendered  operative  only 
from  the  time  of  the  vote  which  revived  it,  a  tax  list  prepared  under  it  prior  to 
the  second  meeting  cannot  be  used  for  the  purpose  of  collecting  the  tax ;  though 
otherwise,  srmble,  of  a  warrant  prepared  at  the  same  time,  if  renewed  after  the 
third  meeting  so  as  to  be  equivalent  to  new  process. 

TROVER  for  a  horse,  tried  at  the  Monroe  circuit,  in  April, 
1842,  before  DAYTON,  C.  Judge.     The  three  defendants  were 


HO  CASES  IN  THE  SUPREME  COURT. 

Gale  r.  Ulead. 

trustees  of  school  district  No.  3  in  Clarkson.  At  the  annual 
meeting  of  the  taxable  inhabitants  of  the  district  on  the  7th  of 
October,  1839,  a  tax  of  $300  was  voted  to  build  a  new  school 
house.  On  the  1st  of  November  following,  the  trustees  pre- 
pared the  proper  assessment  or  tax  list,  in  which  the  plaintiff's 
tax  was  fixed  at  $60,19  ;  and  on  the  21st  day  of  that  month 
the  trustees  made  out  their  warrant  in  the  usual  form  for  col- 
lecting the  tax.  At  a  district  meeting,  held  on  the  25th  day 
of  the  same  month,  a  vote  was  passed  repealing  the  vote  for  a 
tax  which  had  been  passed  on  the  7th  of  October.  On  the  5th 
of  December  following  another  district  meeting  was  held,  at 
which  a  vote  was  passed  repealing  the  vote  of  the  25th  of  No- 
vember which  had  repealed  the  vote  for  a  tax.  And  thereupon 
the  trustees,  on  the  23d  day  of  December,  renewed  the  war- 
rant which  had  previously  been  made  out,  and  delivered  it 
with  the  tax  list  annexed  to  the  collector,  who,  by  virtue  of  the 
warrant,  took  and  sold  the  plaintiff's  horse  to  satisfy  his  tax ; 
and  for  that  taking  this  action  was  brought.  The  judge  deci- 
ded that,  although  he  was  of  opinion  the  vote  of  the  5th 
of  December  repealing  the  vote  of  the  25th  of  November  re- 
stored the  original  vote  to  raise  $300  passed  at  the  annual 
meeting,  yet  that  it  was  so  restored  only  as  a  tax  of  that  amount 
voted  for  the  first  time  on  the  5th  of  December,  and  that  all 
the  proceedings  had  under  the  vote  at  the  annual  meeting  were 
void.  That  the  trustees  were  bound  after  the  vote  of  the  5th 
of  December  to  go  on  and  make  a  new  assessment  of  the  tax, 
and  proceed  in  all  respects  as  though  that  was  the  first  vote 
which  had  been  passed  to  raise  money  ;  and  not  having  dcr.e 
so,  the  warrant  was  void  and  formed  no  justification  to  the  de- 
fendants. The  defendants  excepted,  and  the  jury  gave  their 
verdict  for  the  plaintiff.  The  defendants  now  moved  for  a  new 
trial  on  a  bill  of  exceptions. 

H.  R.  Selden,  for  the  defendants. 
A.  Gardiner^  for  the  plaintiff. 


ALBANY,  JANUARY,  1843. 


Gale  v.  Mead. 


By  the  Court,  BRONSON,  J.  The  taxable  inhabitants  of  a 
school  district,  when  duly  assembled,  are  invested  with  several 
legislative  powers  in  relation  to  the  affairs  of  the  district  j  and, 
among  others,  they  have  the  power  to  lay  a  tax  for  building  a 
new  school  house.  They  are  also  authorized  "  to  repeal,  alter 
and  modify  their  proceedings  from  time  to  time  as  occasion 
may  require."  (1  R.  S.  478,  §  61.)  As  nothing  beyond  pre- 
paring a  warrant  and  tax  list  had  been  done  under  the  resolu- 
tion of  the  7th  of  October,  the  district  was  at  liberty  to  rescind 
the  vote  to  lay  a  tax,  as  they  did  at  the  meeting  of  the  25th  of 
November.  But  on  the  5th  of  December,  the  repealing  vote 
was  itself  repealed.  This  revived  or  renewed  the  original  vote 
to  lay  a  tax.  The  unqualified  repeal  of  a  repealing  statute  re- 
vives the  original  enactment.  (Case  of  the  Bishops,  12  Co.  7  j 
2  Inst.  686  ;  Wheeler  v.  Roberts,  7  Cowen,  536  j  Common- 
wealth v.  Churchill,  2  Met.  118.)  I  see  no  reason  why  that 
rule  should  not  apply  here,  as  well  as  to  legislation  on  a  larger 
scale.  There  was,  then,  the  necessary  vote  to  lay  a  tax  at  the 
time  the  warrant  was  delivered  to  the  collector  on  the  23d  of 
December. 

But  there  is  still  a  difficulty  in  sustaining  the  defence.  Al- 
though the  vote  to  lay  a  tax  was  revived  or  renewed  on  the 
5th  of  December,  I  do  not  see  how  the  vote  of  that  day  could 
have  any  retroactive  effect.  The  warrant  and  tax  list  which 
had  previously  been  made  out,  fell  to  the  ground  when  the  ori- 
ginal vote  was  rescinded  on  the  25th  of  November,  and  the 
subsequent  renewal  of  the  vote  could  not  resuscitate  the  for- 
mer proceedings  under  it.  The  trustees  should  have  begun  de 
novo  after  the  5th  of  December.  But  instead  of  doing  so,  they 
subjoined  a  renewal  to  the  warrant,  and  delivered  it  with  the  tax 
list  to  the  collector. 

As  the  warrant  had  never  been  issued  before,  there  could 
not  strictly  be  a  renewal  of  it,  within  the  meaning  of  the  stat- 
ute. (1  R.  S.  484,  ^  89.)  Still,  the  renewal  under  the  hands  and 
seals  of  the  trustees  on  the  23d  of  December  may  perhaps  be 
regarded  as  making  it  new  process  of  that  date.  (Smith  v. 


112  CASES  IN  THE  SUPREME  COURT. 


Acker  v.  Witherell. 


Randall,  3  Hill,  495.)  And,  in  this  view  of  the  case,  the  war- 
rant may  be  well  enough.  But  I  see  no  way  in  which  the  dif- 
ficulty in  relation  to  the  tax  list  can  be  got  over.  The  statute 
provides,  that  every  district  tax  shall  be  assessed  and  the  tax 
list  thereof  be  made  out  by  the  trustees  within  one  month  after 
the  tax  is  voted.  (1  R.  S.  483,  §  82.)  This  tax  was  assessed 
and  the  tax  list  made  out  before  the  tax  was  voted.  The  list 
was  completed  on  the  first  of  November,  more  than  a  month 
before  the  vote  of  the  5th  of  December.  But  the  length  of 
time  is  not  very  material.  The  assessment  and  tax  list  should 
have  followed  the  vote.  There  may  have  been  great  changes 
in  the  taxable  persons  and  property  in  the  district  between  the 
time  when  the  list  was  made,  and  the  time  when  it  should  have 
been  prepared.  But  whether  so  or  not,  this  entire  departure 
from  the  statute  cannot  be  supported. 

New  trial  denied. 


ACKER,  sheriff  &c.,  vs.  WITHERELL  and  others. 

The  trustees  of  the  estate  of  an  absconding,  concealed  or  non-resident  debtor 
may  maintain  an  action  against  the  sheriff  for  suffering  the  goods  attached  by 
him  to  be  lost  through  his  negligence. 

Where,  in  such  action,  the  declaration  commenced  by  describing  the  plaintiffs  as 
"  trustees  for  all  creditors  of  the  estate,  real  and  personal  of  M.,  late  of  &c.,  an 
absconding  or  concealed  debtor,"  and  then  set  forth  the  proceedings  against  M. 
down  to  and  including  the  seizure  of  the  property  by  the  sheriff  in  virtue  of  the 
warrant,  but  contained  no  direct  averment  that  the  plaintiffs  had  been  appointed 
trustees  in  consequence  of  such  proceedings;  held,  nevertheless,  that  the  declaration 
was  sufficient  in  this  respect  on  error,  no  special  demurrer  having  been  interposed. 

Goods  of  a  mere  under-tenant  which  have  been  removed  from  the  demised  premi- 
ses before  any  rent  became  due,  are  not  liable  to  be  distrained  for  subsequently 
accruing  rent. 

Otherwise,  if  the  goods  belong  to  one  who  occupied  as  assignee  of  the  original 
tenant. 

The  fact  of  demised  premises  being  found  in  the  possession  of  one  not  named  in 
the  lease,  raises  the  presumption  that  he  is  in  as  assignee  of  the  lessee  and  not 


ALBANY,  JANUARY,  1843.  1 13 


Acker  t>.  Witherell. 


as  under-tenant ;   especially  if  it  appear  that  he  has  paid  rent  to  the  original 
landlord. 

Though  goods  be  seized  by  the  sheriff  under  an  attachment  against  an  abscond. 
ing  debtor,  this  detracts  nothing  from  the  landlord's  right  to  distrain  them  for 
rent. 

ERROR  to  the  superior  court  of  the  city  of  New-York.  The 
commencement  of  the  declaration  in  the  court  below  was  as 
follows  :  "  City  and  county  of  New-York,  ss.  Edward  With- 
erell,  Casper  Writter  and  William  A.  Cromwell,  of  the  said 
city,  trustees  for  all  creditors  of  the  estate  real  and  personal 
of  John  M'Lane,  late  of  the  said  city,  an  absconding  or  con- 
cealed debtor,  plaintiffs  in  this  suit,  by  &c.,  complain,"  &c. 
The  fifth  count  was  in  these  words  :  "  For  that  whereas,  &c. 
on  the  17th  day  of  April,  1839,  Allen  Gorham  made  applica- 
tion in  writing  to  the  Hon.  Thomas  J.  Oakley,  one,  &c.,  stating 
that  he  [Gorham]  was  an  inhabitant  of  the  state  and  city  of  New- 
York,  and  was  a  creditor  of  the  said  M'Lane,  late  of  the  city  of 
New- York,  in  Ihe  sum  of  $100  and  upwards,  and  that  the  said 
M'Lane  was  an  inhabitant  of  this  state,  residing  in  the  city  of 
New-York,  and  had  secretly  absconded  from  and  left  this  state 
with  the  intent  to  defraud  his  creditors  or  to  avoid  the  service 
of  civil  process  ;  and  prayed,"  &c.  [detailing  the  proceedings 
pursuant  to  the  statute,  viz.  that  a  warrant  was  issued  and  deliv- 
ered to  the  defendant,  sheriff  of  the  said  city  and  county,  and 
that  by  virtue  thereof  he  attached  certain  goods  belonging  to 
M'Lane.]  The  declaration  then  averred  that  the  plaintiffs  de- 
manded the  goods  of  the  defendant,  who  had  negligently  suf- 
fered them  to  be  taken  out  of  his  possession  whereby  they  be- 
came wholly  lost.  There  was  no  allegation,  except  as  above, 
that  the  plaintiffs  had  been  appointed  trustees.  The  defen- 
dant pleaded  the  general  issue,  and  a  trial  was  had  on  the  fifth 
count  only,  the  others  having  been  abandoned.  The  facts  of 
the  case,  as  they  appeared  on  the  trial  in  the  court  below,  were 
as  follows  :  The  goods  in  question  were  removed  by  M'Lane, 
on  the  15th  of  April,  1839,  from  store  No.  121  Fulton-street, 
New- York,  to  store  No.  110,  on  the  same  street.  The  former 
store  had  been  occupied  by  M'Lane  from  October,  1838,  down 
VOL.  IV.  15 


114  CASES  IN  THE  SUPREME  COURT. 


Acker  ».  Witherell. 


to  the  time  the  goods  were  removed.  On  the  17th  of  April, 
two  days  after  the  removal,  the  defendant  seized  the  goods  in 
virtue  of  the  warrant  against  M'Lane  and  caused  them  to  he 
taken  from  store  No.  110,  to  a  room  in  Courtlandt-street,  where 
they  remained  till  in  May  following,  when  they  were  distrain- 
ed and  sold  in  behalf  of  one  Renscher  for  a  quarter's  rent  of 
store  No-  121,  Fulton-steet.  The  rent  fell  due  the  1st  of  May, 
on  a  lease  given  by  Renscher  to  one  James.  The  rent  of  the 
previous  quarter  ending  on  the  1st  of  February,  had  been  paid 
to  Renscher  by  M'Lane.  The  court  below  charged  the  jury 
that,  as  the  goods  had  been  removed  from  store  No.  121,  and 
were  in  the  custody  of  the  defendant  in  virtue  of  the  warrant 
against  M'Lane,  they  could  not  be  followed  and  distrained  by 
Renscher  ;  and  therefore  the  distress  constituted  no  defence  to 
the  action.  The  defendant  below  excepted  to  the  charge,  and 
the  jury  rendered  a  verdict  in  favor  of  the  plaintiffs.  After 
judgment,  the  defendant  sued  out  a  writ  of  errop. 

S.  Stevens,  for  the  plaintiff  in  error,  said  it  was  doubtful 
whether  trustees  under  the  statute  relating  to  absconding 
debtors  could  in  any  case  maintain  an  action  of  this  character. 
(1  R.  S.  798,  ^  7,  2d  ed.)  But  if  it  were  otherwise,  still  the 
judgment  of  the  court  below  must  be  reversed,  for  the  reason 
that  there  is  no  sufficient  averment  in  the  declaration  of  the 
plaintiffs  having  been  appointed  trustees.  Again  :  on  the  proof 
given  at  the  trial,  the  court  below  had  no  right  to  direct  a  ver- 
dict for  the  plaintiffs.  The  defendant  showed  that  the  goods 
were  taken  from  his  custody  under  a  lawful  distress ;  and  thus 
his  alleged  default  was  excused.  True,  had  M'Lane  been  a 
mere  under-tenant,  the  goods  in  question  would  not  have  been 
liable  to  seizure  in  virtue  of  the  distress  warrant.  The  fact, 
however,  of  his  having  occupied  the  premises,  and  paid  rent  to 
the  landlord,  raised  the  presumption  that  he  was  in  as  assignee 
of  the  original  tenant  j  (  Williams  v.  Woodward^  2  Wend.  487  ;) 
and  if  so,  the  goods. were  rightfully  distrained.  (Coles  v,  Mar- 
,  2  Hi//,  447.) 


ALBANY,  JANUARY,  1848. 


Acker  r.  Wilherell. 


JV".  HM,  Jr.  contra. 

By  the  Court ,  COWEN,  J.  Bringing  the  introductory  clause 
in  the  declaration  and  the  fifth  count  into  immediate  juxta- 
position, we  then  have  the  allegation  that  the  plaintiffs  below 
were  trustees  of  the  creditors  of  John  M'Lane,  who  is  shown 
to  have  been  regularly  proceeded  against  as  an  absconding 
debtor.  There  is,  to  be  sure,  no  direct  averment  that  their  ap- 
pointment was  in  consequence  of  the  proceeding  mentioned. 
This,  however,  is  plainly  inferable  from  the  whole  matter, 
which  is  sufficient  on  writ  of  error,  no  special  demurrer  having 
been  interposed. 

Scarcely  a  question  was  made  on  the  argument  that,  being 
properly  connected  with  the  proceeding,  the  defendants  in  er- 
ror might  sustain  an  action  against  the  sheriff  for  his  alleged 
default.  (1  R.  S.  798,  §  7,  2d  ed.) 

It  is  not  insisted  that  the  seizure  by  the  sheriff  detracted  any 
thing  from  Renscher's  right  to  distrain.  (1  R.  S.  796, 2d  e.d.  § 
28.)  This  being  so,  the  proceeding  is  disembarrassed  of  the 
objection  that  the  goods  were  in  the  custody  of  the  law.  They 
are  to  be  looked  upon  as  goods  removed  by  M'Lane  from  the 
demised  premises,  and  still  held  by  him.  No  question  is  made 
that  they  were  distrained  within  the  thirty  days  allowed  by  the 
general  statute.  (2  R.  S.  413, 2d  ed.  §  16, 17.)  Nor  was  any 
such  question  specifically  raised  in  the  court  below. 

Coming  to  the  general  statute,  I  have  not  been  able  to  dis- 
cern any  ground  for  the  peremptory  direction  given  to  the  jury 
by  the  court  below,  that  there  was  no  right  of  distress.  If 
M'Lane  had  been  a  mere  under-tenant  of  James,  the  goods  be- 
longing to  M'Lane  and  being  removed  before  a  right  to  dis- 
train accrued  to  the  landlord,  they  would,  indeed,  have  been 
exempt  from  distress,  within  the  late  case  of  Coles  v.  Mar- 
quand,  (2  Hill,  447.)  Otherwise,  if  he  was  assignee,  according 
to  the  same  case.  There  was  nothing  in  the  proof  directly  de- 
fining his  relation j  and  it  should  at  least,  I  think,  have  been 
left  with  the  jury  to  say  whether  he  was  one  or  the  other. 


116  CASES  IN  THE  SUPREME  COURT. 

Sharp  r.  Ingraham. 


The  presumption  of  law,  where  a  man  is  shown  to  be  in  pos- 
session of  leasehold  premises,  without  any  thing  more,  I  take 
to  be,  that  he  is  in  as  an  assignee  of  the  original  tenant.  (2 
Phil.  Ev.  150,  151,  JV.  Y.  ed.  of  1839;  Williams  v.  Wood- 
ward, 2  Wend.  487,  492.)  Here  too  is  proof  beyond  mere 
possession.  M'Lane  paid  rent  to  Renscher.  (Id.  ibid.) 

The  judgment  must,  I  am  of  opinion,  be  reversed,  and  a 
venire  de  novo  go  from  the  court  below. 

Ordered  accordingly. 


SHARP  and  others  vs.  INGRAHAM. 

In  ejectment,  if  possession  by  the  defendant  at  the  time  of  the  commencement  of 
the  suit  be  shown,  the  presumption  will  be,  in  the  absence  of  evidence  to  the 
contrary,  that  he  entered  and  held  in  hostility  to  the  plaintiff,  and  not  in  subor- 
dination to  his  right. 

Accordingly,  in  order  to  put  the  plaintiff  to  proof  of  an  ouster,  hi  such  case,  the 
defendant  must  show  affirmatively  that  either  he,  or  one  under  whom  he  claims, 
is  a  joint-tenant  or  tenant  in  common  with  the  plaintiff. 

The  rule  is  the  same,  though  the  plaintiff  claim  only  an  undivided  interest  in  the 
premises  in  question. 

Where  the  plaintiff  showed  title  to  an  undivided  interest  in  a  lot  of  land,  and  it  ap- 
peared that  the  defendant  entered  into  possession  under  one  C.,  who  for  several 
years  had  exercised  acts  of  ownership  over  the  lot  by  leasing  the  same,  but  no 
evidence  was  given  of  any  privity  of  estate  or  title  between  C.  and  the  plaintiff; 
held,  that  the  latter  was  entitled  to  recover,  without  proving  an  ouster. 

EJECTMENT,  tried  at  the  Greene  circuit,  in  1840,  before 
CUSHMAN,  C.  Judge.  The  plaintiffs  showed  title  to  an  undi- 
vided sixth  part  of  lot  No.  43,  in  great  lot  No.  20,  of  the  Har- 
denberg  patent,  and  proved  that  the  defendant  occupied  and 
claimed  possession  of  the  whole  of  lot  No.  5 — one  of  the  sub-- 
divisions of  lot  No.  43.  It  appeared,  however,  that  tiie  defen- 
dant, held  under  a  lease  executed  by  George  Clark  to  Jacob 
M'Gennis,  dated  January  23d,  1826,  purporting  1o  demise  four 


ALBANY,  JANUARY,  1843.  H7 

Sharp  t.  Intrraham. 

equal  undivided  fifth  parts  of  said  lot  No.  5,  and  that  Clark 
had  possessed  lot  No.  43,  by  his  tenants,  for  many  years.  But 
whether  Clark  claimed  title  to  the  whole  of  Jot  No.  43,  or  on- 
ly to  an  undivided  portion  ;  and,  if  the  latter,  whether  he 
claimed  as  tenant  in  common  with  the  plaintiffs,  or  otherwise, 
•did  not  appear.  The  plaintiffs  insisted  that  they  were  entitled 
to  recover  one  sixth  part  of  lot  No.  5  ;  but  the  circuit  judge 
held  otherwise,  and  directed  a  nonsuit,  on  the  ground  that  the 
defendant's  possession  was,  prima  facie,  that  of  a  tenant  in 
common  with  the  plaintiffs,  and  no  ouster  or  adverse  holding 
had  been  proved.  The  plaintiffs  excepted,  and  now  moved  for 
a  new  trial  on  a  bill  of  exceptions. 

L.  Elmendorf,  for  the  plaintiffs. 
Jl.  Taber,  for  the  defendant. 

By  the  Court,  NELSON:,  Ch.  J.  Under  the  former  practice 
in  ejectment,  judgment  passed  against  the  casual  ejector  (John 
Stiles)  unless  the  tenant  came  in  and  entered  into  the  consent 
rule,  by  which  he  was  obliged  to  confess  lease,  entry  and  ous- 
ter. If  he  claimed  only  an  undivided  interest  in  the  premises  as 
coparcener,  joint-tenant,  or  tenant  in  common,  he  was  permitted, 
en  showing  that  fact  to  the  court,  and  that  there  had  been  no 
ouster,  to  enter  into  a  special  consent  rule  admitting  the  les- 
sor's title  as  to  the  undivided  part ;  and  was  excused  from  con- 
fessing ouster  to  the  extent  of  such  conceded  interest,  leaving 
that  question  to  be  litigated  on  the  trial.  (Langcndyck  v. 
Burhans,  11  John.  R.  4G2  ;  Jackson  v.  Lyons,  18  id.  398; 
Wigfall  v.  Brydon,  3  Burr.  1897  ;  Doe  v.  Roe.  2  Taunt. 
397.)  The  revised  statutes  have  abolished  the  consent  rule, 
and  it  is  now  provided  that  it  shall  not  be  necessary  on  the 
trial  for  the  defendant  to  confess,  nor  for  the  plaintiff  to  prove 
lease,  entry  and  ouster,  except  where  the  action  is  brought  by 
one  or  more  tenants  in  common  or  joint-tenants  ag«  inst  their 
co-tenants  ;  in  which  case  the  plaintiff,  in  addition  to  other 


1 18  CASES  IN  THE  SUPREME  COURT. 

Sharp  t>.  Ingraham. 

necessary  proof,  is  required  to  show  an  actual  ouster,  or  som. 
other  act  amounting  to  a  total  denial  of  his  right  as  such  co 
tenant.  (2  R.  S.  306,  §  26,  27  ;  Siglar  v.  Van  Riper,  K 
Wend.  414.) 

It  is  clear,  therefore,  both  from  the  former  practice  in  eject- 
ment and  from  the  language  of  the  revised  statutes,  that  before  • 
the  plaintiff  can  now  be  called  on  to  prove  an  ouster,  the  de- 
fendant must  make  out  on  the  trial  that  he  is  a  co-tenant  with 
him  of  the  premises.  It  is  only  when  that  relation  is  shown 
to  exist,  that  proof  of  ouster  becomes  necessary.  In  the  ab- 
sence of  such  relation,  it  is  enough  if  the  plaintiff  establish  his 
title.  Nor  does  the  fact  of  the  plaintiff  seeking  to  recover 
an  undivided  interest  only,  devolve  upon  him  the  necessity  of 
this  proof ;  for  it  by  no  means  follows  that  the  defendant  owns 
the  other  portion  or  any  part  of  it  as  tenant  in  common.  The 
defendant  being  in  the  possession  and  occupation  of  the  whole, 
the  presumption,  in  the  absence  of  any  other  proof  to  the  con- 
trary is,  that  he  holds  in  hostility  to  the  plaintiff — that  he  claims 
title  to  and  possession  of  every  part  and  parcel  of  the  premises. 
The  burden,  therefore,  lies  upon  him  to  make  out  the  fact  of  a 
tenancy  in  common  or  joint-tenancy.  This  being  done,  the 
presumption  of  law  arises  that  he  holds  in  subordination  to 
the  right  of  his  co-tenant,  and  that  his  possession  is  the  posses- 
sion of  both.  Hence,  in  such  case,  the  propriety  and  necessi- 
ty of  some  evidence  that  he  has  denied  tl^e  plaintiff's  right,  be- 
fore he  shall  be  subjected  to  the  expenses  of  a  suit.  (Fishar 
v.  Prosser,  Cowp.  218,  219  ;  Butler  v.  Phelps,  17  Wend.  647  ; 
Gillet  v.  Stanley,  1  Hill,  121.)  The  difficulty  in  this  case  is, 
that  there  is  no  proof  whatever  that  Clark's  title,  or  the  posses- 
sion under  it,  has  any  connexion  with  the  title  under  which  the 
plaintiffs  claim.  It  does  not  even  appear  but  that  it  embraced 
the  whole  interest  and  estate  in  the  tract  of  which  the  lot  in 
question  is  a  part,  or  that  it  was  not  derived  from  a  source  in 
hostility  to  that  of  the  plaintiffs  Before  the  defendant  can 
claim  any  thing  in  the  way  of  imposing  the  onus  of  proof  of 
on  ouster  upon  his  adversary,  by  connecting  himself  with  his 


ALBANY,  JANUARY,  1834.  \]g 

Rapclye  r.  Prince. 

title,  he  must  show  that  Clark  held  the  lot  as  co-tenant  with 
the  plaintiffs,  or  with  those  under  whom  they  derived  title. 
We  have  seen  that  this  was  essential  under  the  old  practice, 
before  the  defendant  was  excused  from  confessing  the  ouster 
by  entering  into  a  special  consent  rule  ;  and  then  he  was  bound 
\o  admit  the  title  and  put  himself  solely  upon  the  question  of 
ouster,  or  not.  Now  that  the  plaintiff  is  bound  to  make  proof 
of  title  in  the  first  instance,  and  is  still  obliged  to  meet  the 
question  of  ouster  on  the  trial,  we  ought,  at  least,  to  hold  the 
defendant  to  as  strict  proof  of  the  existence  of  the  co-tenancy 
as  he  was  required  to  give  before  he  was  permitted  to  excuse 
himself  from  confessing  the  ouster.  I  am  of  opinion,  there- 
fore, that  a  new  trial  should  be  granted,  costs  to  abide  the 
event. 

New  trial  granted. 


RAPELYE  &  PURDY  vs.  PRINCE  &  PRINCE. 

If  •  person  covenant  for  t:ie  results  or  consequences  of  a  suit  between  others,  the 
decree  or  judgment  in  such  suit  will  be  evidence  against  him,  though  he  was  not 
a  party. 

Accordingly,  where  one  assigned  a  mortgage,  covenanting  that  it  should  produce 
and  yield  a  given  sum  over  and  aoove  the  costs  of  foreclosing,  and  that  if  it  did 
not,  he  would  pay  the  deficiency :  held,  that  the  assignee  having  subsequently 
foreclosed  the  mortgage  in  chancery  and  sold  under  the  decree,  without  making 
the  assignor  a  party,  these  proceedings  wen.  evidence  against  the  latter,  in  an 
action  on  the  covenant,  to  show  the  amount  of  the  deficiency. 

Held  further,  that  the  assignor  was  estopped  by  the  decree  from  questioning  the 
amount  found  due  upon  the  mortgage,  no  fraud  being  alleged. 

The  case  of  Douglass  v.  Hoicland,  (24  Wend.  35,)  commented  on  and  explained. 

If  a  witness  who  has  been  duly  subpoenaed,  either  neglect  to  attend,  or  leave  court 
after  the  trial  has  commenced,  it  is  in  the  discretion  of  the  judge  whether  he  will 
suspend  the  trial  until  the  witness  can  bo  brought  in. 

The  decision  of  a  judge  upon  a  matter  resting  in  his  discretion  cannot  be  reviewed 
on  bill  of  exceptions. 

Where  a  party  excepts  to  a  decision  of  this  character,  the  judge  shonld  strike  th» 
exception  from  (he  bill  before  affixing  his  seal  to  it  Per  BRONSON,  J. 


120  CASES  117  THE  SUPREME  COURT. 

Rapelye  v.  Prince. 

Ths  only  mode  of  procuring  the  attendance  of  a  plaintiff  for  the  purpose  of  ex. 

amiaing  him  pursuant  to  the  usury  law  of  1837,  (Sess.  L.  of  37,  p.  487,  §  2,)  is 

by  serving  him  with  a  subpoena  in  due  season,  and  paying  or  tendering  him  the 

fees  of  a  witness.     He  is  not  bound  to  regard  a  mere  notice  to  attend. 
After  judgment  has  been  perfected  on  a  verdict  rendered  at  the  circuit,  it  is  too 

late  to  move  for  a  new  trial  on  the  mere  ground  of  surprise. 
I.i  general,  a  motion  for  a  new  trial  on  the  ground  of  surprise  will  be  heard  only 

at  the  special  term ;  and  this,  though  a  case  or  bill  of  exceptions  have  been 

mnde. 
If  such  motion  be  made  where  there  is  also  a  case  or  bill  of  exceptions,  the  court 

may,  in  its  discretion,  suspend  a  decision  until  the  enumerated  motion  shall  have 

been  argued.    Per  BRONSON,  J. 
Where  the  intention  is  to  move  on  the  ground  of  newly  discovered  evidence,  the 

ground  of  surprise  may  also  be  added,  and  the  whole  will  then  bo,  heard  to 

gtther  at  the  general  term.    Per  BRONSON,  J. 

COVENANT,  tried  at  the  New-York  circuit,  in  April,  1842,  be- 
fore KENT,  C.  Judge.  The  action  was  on  a  sealed  agreement 
by  the  defendants,  dated  November  4th,  1837.  The  agree- 
ment recited  that  the  defendant,  John  D.  Prince,  had  that  day 
assigned  to  the  plaintiffs  a  mortgage  bearing  date  December 
1st,  1834,  executed  by  Hunn  ..C.  Beach  to  George  Martense, 
together  with  the  bond  accompanying  the  same  ;  and  that  the 
plaintiffs  had  purchased  the  bond  and  mortgage  at  the  request 
of  both  of  the  defendants.  The  defendants  then  covenanted 
with  the  plaintiffs,  among  other  things,  that  the  bond  and  mort- 
gage "  shall,  with  reasonable  care  and  diligence,  produce  and 
yield  to  the  said "  plaintiffs  "  the  said  principal  sum  of  two 
thousand  five  hundred  dollars  with  interest  thereon,  at  the  rate 
of  seven  per  centum  per  annum  from  the  first  day  of  June  last 
past,  over  and  above  the  costs  and  expenses  of  suing  upon  or 
foreclosing  the  said  indenture  of  mortgage ;  and  that  in  the 
event  of  there  happening  to  be  any  deficiency,  we  will  pay  the 
amount  thereof"  to  the  plaintiffs.  The  declaration  stated  at 
large  a  foreclosure  of  the  mortgage  in  chancery,  and  that  there 
was  a  deficiency,  which  the  defendants  had  not  paid.  The  de- 
fendants pleaded  non  estfactum^  and  gave  notice,  in  several 
forms,  of  the  defence  of  usury.  To  this  was  subjoined  an  af- 


ALBANY,  JANUARY,  1843. 


Rapelye  o.  Prince. 


fidavit  by  the  defendant,  John  D.  Prince,  of  the  truth  of  the 
notice. 

On  the  trial,  the  plain  tiffs  proved  and  read  in  evidence  the 
covenant  declared  on.  They  also  gave  in  evidence  the  proceed- 
ings in  chancery,  from  which  it  appeared  that  the  mortgage 
of  Beach  had  been  foreclosed  in  that  court,  and  the  property 
sold  under  the  final  decree  for  the  sura  of  $1500,  and  purchased 
by  the  defendant  John  D.  Prince.  It  further  appeared  from 
those  proceedings  that  the  plaintiffs  had,  prior  to  the  decree, 
paid  $130,96  to  redeem  the  mortgaged  premises  from  a  corpo- 
ration sale  to  satisfy  a  street  assessment.  This  sum  was  added 
to  the  mortgage  debt,  and  the  decree  directed  a  sale  to  pay  the 
whole.  After  deducting  costs  and  the  price  the  land  sold  for, 
there  was  a  deficiency  in  the  necessary  amount  to  pay  the  plain- 
tiffs, which,  with  interest,  amounted  to  $1673,43. 

When  the  plaintiffs'  proofs  were  through,  the  defendants 
called  on  the  plaintiffs  to  testify,  and  the  plaintiffs  not  answer- 
ing or  appearing,  the  defendants  read  a  notice  requiring  the 
plaintiffs  to  attend  the  circuit  at  which  the  cause  was  to  be 
tried,  to  be  examined  as  witnesses  on  the  part  of  the  defen- 
dants ;  to  which  notice  an  affidavit  was  annexed,  stating  that  a 
copy  of  the  notice  had  been  served  on  each  of  the  plaintiffs. 
The  defendants  thereupon  moved  that  the  plaintiffs  be  nonsuit- 
ed for  not  appearing,  or  that  an  attachment  should  be  issued 
against  them.  The  judge  denied  the  motion,  and  the  defen- 
dants excepted.  The  defendants  then  moved  the  court  to  give 
leave  to  subpoena  the  plaintiffs  to  appear  and  testify  ;  but  the 
judge  refused,  and  the  defendants  excepted. 

The  defendants  requested  the  judge  to  charge  that,  under  the 
testimony,  the  plaintiffs  were  only  entitled  to  a  verdict  for 
nominal  damages,  on  the  ground  that  there  was  no  legal  proof 
of  any  deficiency  —  that  the  proceedings  in  chancery  were  not 
binding  upon  the  defendants,  as  they  were  not  parties  to  the 
suit.  The  judge  refused  so  to  charge,  and  the  defendants  ex- 
cepted. They  then  requested  the  judge  to  charge  that  the 
plaintiffs  were  not  entitled  to  recover  the  sum  which  was  al- 

VOL.  IV.  16 


122       CASES  IN  THE  SUPREME  COURT. 


Rapelye  ».  Prince. 


leged  to  have  been  paid  on  account  of  assessments  upon  the 
mortgaged  premises,  amounting,  with  interest,  to  $138,96. 
The  judge  refused,  and  the  defendants  excepted.  The  judge 
charged  that  the  plaintiffs  were  entitled  to  a  verdict  for  the 
whole  deficiency,  and  the  defendants  excepted.  The  jury 
found  a  verdict  accordingly  for  $1673,43. 

In  addition  to  the  motion  for  a  new  trial  on  the  bill  of  ex- 
ceptions, the  defendants  presented  affidavits  stating  that  they 
were  surprised  on  the  trial  by  the  non-attendance  of  the  plain- 
tiffs as  witnesses  pursuant  to  the  notice  given  for  that  purpose, 
and  asked  a  new  trial  on  the  ground  of  surprise.  In  answer 
to  this,  affidavits  were  presented  stating,  among  other  things, 
that  judgment  was  perfected  on  the  verdict  in  August  last.  A 
question  was  also  made  whether  a  motion  for  a  new  trial  on 
the  ground  of  surprise  could  be  heard  at  the  general  term. 

S.  Stevens  for  the  defendants. 
T.  Fessenden,  for  the  plaintiffs. 

By  the  Court,  BRONSON,  J,  The  defendants  insist  that  the 
proceedings  in  chancery  for  the  foreclosure  of  the  mortgage 
mentioned  in  the  covenant  are  not  evidence  against  them,  be- 
cause they  were  not  parties  to  that  suit ;  and  for  this  they  rely 
on  the  case  of  Douglass  v.  Howland,  (24  Wend.  35.)  There, 
one  Bingham  agreed  to  account  with  the  plaintiff,  and  to  pay 
any  balance  which  might  be  found  due  from  him  ;  and  the  de- 
fendant covenanted  with  the  plaintiff  that  Bingham  would  per- 
form the  agreement.  This  accounting  never  took  place,  but 
an  account  was  taken  in  chancery  in  a  suit  to  which  the  de- 
fendant was  not  a  party.  We  held  the  proceedings  in  chance- 
ry were  not  evidence,  or  at  the  least,  not  conclusive  evidence 
against  the  defendant.  But  it  was  admitted  in  that  case  that 
if  Bingham  had  voluntarily  accounted  and  struck  a  balance, 
the  defendant  would  have  been  bound  by  it,  although  he  had 
taken  no  part  in  the  transaction.  Such  an  accounting  would 


ALBANY,  JANUARY,  1843.  123 

Rapelye  t.  Prince. 

have  been  within  the  defendant's  undertaking,  but  he  had  not 
covenanted  for  the  results  of  a  suit  in  chancery.  The  distinc- 
tion taken  and  sustained  by  authority  in  that  case  fully  justi- 
fies the  ruling  of  the  judge  on  this  trial.  When  one  covenants 
for  the  results  or  consequences  of  a  suit  between  other  parties, 
the  decree  or  judgment  in  such  suit  is  evidence  against  him, 
although  he  was  not  a  party.  Now  here  the  covenant  plain- 
ly contemplates  a  foreclosure  of  the  mortgage,  and  the  defen- 
dants undertake  to  make  up  any  deficiency  there  might  be  on 
such  foreclosure.  They  covenant  that  the  assigned  security 
shall  produce  and  yield  the  principal  sum  of  $2500  with  in- 
terest, over  and  above  all  costs  and  expenses  of  suing  upon  cr 
foreclosing  the  mortgage,  and  that  they  will  pay  any  defi- 
ciency. A  proceeding  in  chancery  is  the  usual  mode  of  fore- 
closing mortgages,  and  the  defendants  have,  in  effect,  agreed 
that  they  will  be  bound  by  such  foreclosure.  We  need  not  go 
beyond  Douglass  v.  Rowland  and  the  cases  there  cited,  to 
prove  that  the  judge  was  right  in  holding  the  defendants  con- 
cluded by  the  proceedings  in  chancery,  which  ascertained  and 
settled  the  "  deficiency"  or  balance  due  the  plaintiffs  after  ap- 
plying the  money  realized  by  the  sale  of  the  mortgaged 
premises. 

This  view  also  answers  the  objection  that  the  defendants 
could  not  be  charged  with  the  amount  the  plaintiffs  had  been 
obliged  to  pay  to  redeem  the  mortgaged  premises  from  the  sale 
for  a  street  assessment.  There  can  be  no  doubt  that  this  sum 
was  properly  taken  into  the  account  in  chancery ;  but  if  it 
were  otherwise,  the  defendants  are  concluded  by  the  decree 
which  allowed  that  charge.  No  fraud  is  suggested,  and  we 
cannot  overhale  the  decree. 

If  a  witness  who  had  been  duly  subpoenaed  should  either 
neglect  to  attend,  or  leave  court  after  the  trial  had  commenced, 
it  would  rest  in  the  discretion  of  the  judge  whether  he  would 
suspend  the  trial  until  the  witness  could  be  brought  in  on  at- 
tachment or  otherwise  ;  and  if  the  decision  of  the  judge  upon 
such  a  matter  could  be  reviewed  in  any  form,  it  clearly  could 


124  CASES  IN  THE  SUPREME  COURT. 

Rapelye  v.  Prince. 

not  be  done  upon  a  bill  of  exceptions.     This  is  enough  to  an 
swer  the  exception  which  grew  out  of  the  absence  of  the  plain- 
tiffs when  they  were  called  as  witnesses. 

But  as  the  question  has  been  made  and  discussed  at  the  bar  as 
to  the  proper  mode  of  bringing  in  the  plaintiff  as  a  witness  for 
the  defendant  under  our  usury  statute,  and  as  the  same  question 
may  often  arise,  it  seems  proper  to  dispose  of  it.  When  the  de- 
fendant pleads  or  gives  notice  of  the  defence  of  usury,  and  veri- 
fies the  truth  of  his  plea  or  notice  by  affidavit,  he  may  "  call 
and  examine  the  plaintiff  as  a  witness^  in  the  same  manner  as 
other  witnesses  may  be  called  and  examined."  (Stat.  of  1837, 
p.  487,  §  2.)  It  seems  almost  too  plain  for  discussion  that  the 
defendant  must  take  the  same  steps  with  the  plaintiff,  as  he 
would  with  any  other  person  whose  attendance  as  a  witness  he 
wished  to  secure,  which  are,  to  serve  him  with  a  subpoena  in 
due  season,  and  pay  or  tender  his  legal  fees.  The  defendant 
may  call  the  plaintiff.  How  call  him  ?  The  statute  says,  as  a 
witness.  And  then  to  make  the  matter  quite  clear,  it  adds, 
"  in  the  same  manner  as  other  witnesses  may  be  called."  Here 
the  defendants  had  done  nothing  beyond  giving  the  plaintiffs 
notice  to  attend.  That  they  were  not  bound  to  regard. (a) 

When  the  defendants  had  found  out  their  mistake,  they 
wished  the  judge  to  suspend  the  trial  until  they  could  seek  and 
serve  a  subpoena  on  the  plaintiffs.  That  motion  was  clearly  ad- 
dressed to  the  discretion  of  the  judge  ;  and  his  decision  upon  it, 
whether  right  or  wrong,  does  not  make  a  point  upon  which  an 
exception  can  properly  be  taken.  When  parties  except  upon 
such  matters,  the  judge  should  strike  the  exception  out  of  the 
bill  before  he  affixes  his  seal.  But  whether  in  or  out,  the  de- 
cision of  the  judge  upon  such  a  question  cannot  be  reviewed  in 
this  form. 

A  motion  is  also  made  for  a  new  trial  on  the  ground  of  sur- 
prise. The  defendants  were  surprised  when  they  discovered 


(a)  See  Bosworth  v.  Perkamus,  (20  Wend.  611.) 


ALBANY,  JANUARY,  125 


Rapclyc  t.  Prince. 


that  they  had  made  a  mistake  in  not  serving  the  plaintiffs  with 
a  subpoena.  That  would  hardly  be  a  sufficient  ground  for 
granting  a  new  trial  under  any  circumstances.  But  it  is  a  full 
answer  to  this  motion  that  judgment  has  been  perfected  on  the 
verdict.  A  case  or  bill  of  exceptions  may  sometimes  be  ar- 
gued after  judgment,  (Stat.  of  1832,  p.  188,  $  1  j)  but  the  stat- 
ute does  not  extend  to  this  motion. 

It  must  not  be  understood  that  motions  of  this  kind  will 
hereafter  be  heard  at  the  general  term.  They  do  not  belong 
to  the  calendar,  but  should  be  made  at  the  special  term.  And 
this  is  so,  although  a  case  or  bill  of  exceptions  may  have  been 
made.  There  cannot  often  be  any  very  intimate  connection 
between  the  questions  of  law  which  arose  on  the  trial,  and  an 
application  for  a  new  trial  on  the  ground  of  surprise.  By 
confining  such  motions  to  the  speciaj  terms,  expense  and  delay 
will  be  avoided.  When  the  motion  is  made  where  there  is 
also  a  case  or  bill  of  exceptions,  we  can,  if  it  shall  be  deemed 
expedient,  suspend  a  decision  on  the  motion  until  the  calendar 
cause  is  argued.  This  question  of  practice  was  not  noticed  in 
Tilden  v.  Gardiner,  (25  Wendell,  663.)  The  47th  rule  makes 
this  a  non-enumerated  motion.  The  word  "  surprise"  was  not 
in  the  rule  until  1837,  and  was  inserted  at  that  time  for  the 
very  purpose  of  sending  such  motions  to  the  special  term. 
Where  there  is  a  motion  for  a  new  trial  on  the  ground  of  new- 
ly discovered  evidence,  which  must  always  be  accompanied  by 
a  case,  the  ground  of  surprise,  if  it  exist,  may  also  be  added, 
and  the  whole  will  then  be  heard  together.  This  will  satisfy 
the  word  "  exclusively"  in  the  rule.  But  in  all  other  cases,  a 
motion  on  the  ground  of  surprise  belongs  to  the  special  term, 
and  must,  like  other  motions  of  the  same  character,  be  made 
without  delay. 

New  trial  denied. 


126  CASES  IN  THE  SUPREME  COURT. 

Fenton  v.  The  People. 


FENTON  vs.  THE  PEOPLE. 

To  sustain  a  criminal  prosecution  for  obtaining  the  signature  of  one  to  a  mortgage  by 
false  pretences,  the  mere  fact  of  the  instrument  having  been  signed  is  not 
enough ;  a  delivery  must  also  be  shown.  Per  NELSON,  Ch.  J. 

If  the  indictment,  in  such  case,  pursue  the  words  of  the  statute  by  charging  that 
the  defendant  unlawfully  &c.  obtained  the  signature,  it  will  be  sufficient,  though 
it  do  not  aver  a  delivery  in  terms. 

The  indictment  need  not  describe  the  premises  covered  by  the  mortgage. 

The  case  of  The  People  v.  Wright,  (9  Wend.  193,)  commented  on  and  explained. 

ERROR  to  the  Monroe  general  sessions,  where  Fenton  was 
indicted  for  obtaining  the  signature  of  one  Rich  to  a  bond  and 
mortgage,  by  false  pretences.  The  indictment  charged  that 
Fenton,  heretofore  &c.,  at  &c.,  did  falsely  pretend  to  Rich  that 
he  (Fenton)  was  an  agent  of  one  Wickoff  for  the  purpose  of 
loaning  money,  who,  he  said,  was  a  very  wealthy  man  and  an 
elderly  merchant,  having  retired  from  business  in  the  city  of 
New-York,  and  who  had  $100,000  which  he  wished  to  invest 
on  bond  and  mortgage ;  and  that  if  he  the  said  Rich  would 
make  and  execute  his  bond  and  mortgage  for  the  sum  of  $1000, 
he  (Fenton)  would  pay  him  (Rich)  the  said  sum  of  $1000  as 
soon  as  he  could  procure  the  same  from  WickofF,  which  would 
not  exceed  two  or  three  weeks  from  &c.  By  means  of  which 
said  false  pretences,  the  said  Fenton  did  then  and  there  unlaw- 
fully, knowingly  and  designedly  obtain  the  signature  of  the 
said  Rich  to  a  certain  bond  bearing  date  &c.,  in  the  penal  sum 
of  $2000,  conditioned  for  the  payment  of  $1000  to  the  said 
Wickoff  &c.,  and  also  the  signature  of  the  said  Rich  and 
Eleanor  his  wife  to  a  certain  indenture  of  mortgage  bearing 
date  &c.,  executed  to  the  said  Wickoff  upon  certain  real  estate 
of  the  said  Rich  situate  in  said  county  of  Monroe,  conditioned 
for  the  payment  of  the  said  sum  of  $1000  &c.,  which  indenture 
of  mortgage  was  afterwards  duly  recorded  &c. ;  with  intent 
then  and  there  to  cheat  and  defraud  the  said  Rich.  Whereas,  in 
truth  &c.  the  said  Fenton  was  not  the  agent  of  said  Wickoff 


ALBANY,  JANUARY,  1843.  127 

Fenton  t>.  Tho  People. 

for  the  purpose  of  loaning  money,  and  the  said  Wickoff  had 
not  the  sum  of  $100,000  to  invest  in  bonds  and  mortgages,  nor 
any  sum  whatever ;  and  the  said  Wickoff  was  not  a  wealthy 
man,  nor  an  elderly  merchant  retired  from  business  in  the  city 
of  New- York,  but,  on  the  contrary,  was  a  young  man  &c.,  in- 
solvent and  destitute  :  By  reason  whereof  &c.  Fenton  demurred 
to  the  indictment.  The  district  attorney  joined  in  demurrer, 
and  the  court  below  gave  judgment  in  favor  of  the  people  j 
whereupon  Fenton  sued  out  a  writ  of  error. 

j3.  Gibbsj  for  the  plaintiff  in  error. 

W.  S.  Bishop,  (district  attorney,)  contra. 

By  the  Court,  NELSON,  Ch.  J.  It  is  insisted  that  the  indict- 
ment is  defective  for  the  reason,  1.  That  it  does  not  set  forth 
an  actual  delivery  of  the  bond  and  mortgage  to  the  obligee  or 
mortgagee,  or  to  the  prisoner  for  his  benefit ;  and  2.  That  it 
does  not  describe  the  real  estate  mentioned  in  the  mortgage. 

The  statute  provides,  that  every  person  who,  with  intent  to 
cheat  or  defraud  another,  shall  designedly,  or  by  color  of  any 
false  token  or  writing,  or  by  any  other  false  pretence,  obtain 
the  signature  of  any  person  to  any  written  instrument,  &c., 
upon  conviction  thereof,  shall  be  punished  by  imprisonment 
&c.  (2  R.  S.  677,  $  53.)  It  will  be  seen  that  the  averments 
in  the  indictment  are  sufficient  to  bring  the  case  within  the 
terms  of  the  statute.  I  concede,  however,  that  the  case  must 
also  be  brought  within  the  legal  meaning  and  import  of  the 
statute  ;  and  that,  if  a  more  comprehensive  averment  than  the 
use  of  the  words  themselves  is  necessary  to  do  this,  it  should 
be  made.  There  can  be  no  doubt  that,  to  constitute  the  of- 
fence aimed  at  by  this  indictment,  there  must  be  not  only  a 
signing,  but  a  delivery  of  the  instrument.  The  one  without 
the  other  would  harm  nobody.  But  I  am  of  opinion  that  the 
averment  here  made  comprehends  both.  It  is  difficult  to  see 
how  the  signatures  to  the  bond  and  mortgage  could  have  been 


128  CASES  i:;  T.I..  sui'Ui^iE  COURT. 

Fcnton  ».  The  People. 

obtained  by  the  prisoner  unless  they  were  delivered  to  him.  If 
kept  by  Rich  after  the  signing,  clearly  they  were  not  obtained. 
The  word  imports  a  delivery. 

The  second  objection  is  equally  untenable.  The  indictment 
need  not  set  out  the  particular  description  of  the  premises  con- 
tained in  the  mortgage.  It  is  sufficient  for  the  purposes  of  the 
indictment  if  the  instrument  appear  to  be  valid  and  binding  upon 
the  real  estate — such  an  one  as  may  be  used  to  the  prejudice  of 
the  party.  It  is  then  brought  within  the  class  of  written  instru- 
ments mentioned  in  the  statute.  (The  People  v.  Galoway,  17 
Wend.  540.)  The  case  of  The  People  v.  Wright,  (9  t<U93,)  was 
an  indictment  for  forging  a  mortgage.  The  instrument  was  set 
out  in  hac  verba,  but  there  was  no  averment  that  it  embraced  any 
real  estate  in  existence,  much  less  of  the  mortgagor  whom  it 
was  charged  the  prisoner  intended  to  defraud  ;  and  as  the  mort- 
gage did  not  bind  him  personally,  it  is  difficult  to  see  how  he 
could  be  defrauded  by  it,  unless  it  was  a  charge  upon  his  real 
estate.  There  may  be  some  doubt,  notwithstanding  the  prece- 
dents there  cited  from  Chitty,  whether  the  indictment  might 
not  have  been  sufficient  if  the  intent  had  been  laid  to  defraud 
a  person  other  than  the  mortgagor.  The  real  difficulty  in  that 
case  was,  that  the  indictment  charged  a  forgery  of  the  mort- 
gage by  altering  the  receipt  of  a  payment  endorsed  upon  the 
back.  The  offence,  if  any,  was  the  forgery  of  the  receipt,  to 
which  a  different  punishment  was  annexed.  But  the  case  has 
no  application  to  the  one  before  us. (a)  It  is  only  necessary 
here  to  show  upon  the  record  that  the  instrument  is  valid,  and 
may  be  used  to  the  injury  of  the  party  ;  and  that  sufficiently 
appears. 

Judgment  affirmed. 


(a)  See  the  observations  of  Cowen,  J.,  upon  thin  case,  in  The  People  v.  Stearns, 
<21  Wend.  409,  420  et  teg.) 


ALBANY,  JANUARY,  1848. 


Sheldon  c.  Benham. 


SHELDON,  ex'r  &c.  of  Babcock,  vs.  BENHAM,  impleaded  &c. 

A  notary  public  cannot  delegate  his  official  authority  to  another.  Per  BKOK. 
SON,  J. 

The  memorandum  of  a  deceased  teller  of  a  bank,  made  in  the  usual  course  of  hk 
employment,  is  competent  evidence  in  proving  a  demand  by  him  on  the  maker 
of  a  note,  and  notice  to  the  endorsers ;  and  this,  whether  he  attended  to  the 
business  on  the  retainer  of  a  notary,  or  as  part  of  his  duty  to  the  bank. 

Where  the  memorandum  is  abbreviated  or  eliptical  so  as  not  to  be  intelligible 
without  explanation,  an  expert  may  be  called  to  prove  what  the  words  mean. 

So  where  an  instrument  is  written  in  a  foreign  language,  a  translator  may  be 
called. 

If  the  difficulty  arise  from  the  obscurity  of  the  writing  itself,  one  skilled  in  decipher, 
ing  may  be  called.  Semble;  note  (b.) 

Where  the  dispute  is  simply  upon  what  the  words  of  an  instrument  really  are,  the 
question  is  not  for  the  court,  but  belongs  to  the  jury.  Semble ;  tee  note  (b.) 

Payment  of  a  note  cannot  be  demanded  on  the  fourth  of  July,  so  as  to  charge  the 
endorser ;  but  if  that  be  the  last  day  of  grace,  demand  should  be  made  on  the 
third.  Per  BROXSO.V,  J.  9 

Service  of  notice  of  protest  cannot  be  made  through  the  mail,  where  the  party  giv- 
ing it  and  the  one  to  whom  it  is  sent  reside  hi  the  same  village. 

ASSUMPSIT,  tried  at  the  Yates  circuit  in  November,  1841, 
before  MOSELEY,  C.  Judge.  The  action  was  against  Bcnharo 
and  Charles  Hubbard,  as  endorsers  of  the  following  note  : — 
"  Three  months  after  date,  for  value  received,  I  promise  to  pay 
to  the  order  of  Charles  Hubbard  three  hundred  dollars  at  the 
Bank  of  Geneva.  Penn  Van,  April  1,  1837.  (Signed)  W. 
W.  Staats."  Endorsed,  "  Ch's  Hubbard,  George  Benham,  Mo- 
ses Hubbard,  Jr."  When  the  note  fell  due,  John  A.  Coffin  was 
a  notary  public  at  Geneva  ;  and  Harman  Hendy,a  teller  in  the 
bank,  acted  as  the  clerk  of  the  notary,  and  this  note  was  noted 
by  Hendy.  The  notary  and  clerk  were  both  dead  at  the  time 
of.the  trial.  A  book  kept  by  Hendy  contained  a  memorandum 
in  relation  to  this  note  as  follows  : 

"  W.  W.  Staats— Ch's  Hubbard,  }  1  April,  1837, 3  P.  M. 
George  Benham,  I  To  W.  Babcock,  Penn 
Moses  Hubbard,  f  Yan  P.  O.,  Penn  Yan. 
Wm.  Babcock.  J  $300.  6s. 

July  4,  1837,  lodged  in  P.  O." 
VOL.  IV.  17 


130  CASES  IN  THE  SUPREME  COURT. 

Sheldon  v.  Benham. 

On  the  face  of  the  note  was  the  following  entry  in  the  hand 
writing  of  Hendy  :— "  Noted  July  4,  '36.  J.  A.  C.,  N.  P.,  fees 
6*."  The  book  keeper  of  the  bank  testified  in  relation  to  these 
memoranda  as  follows  : — I  understand  "  1  April,  1837,"  to 
mean  the  date  of  the  note,  and  "  July  4,  1837,"  t6  mean  the 
time  it  was  noted ;  the  words  "  To  W.  Babcock,  Penn  Yan 
P.  O.,  Penn  Yan,"  mean  that  notice  of  the  protest  of  the  note 
had  been  sent  by  mail  directed  to  Wm.  Babcock  at  Penn  Yan  ; 
the  figures  "  $300"  mean  the  amount  of  the  note  ;  the  name 
"  W.  W.  Staats"  indicates  the  maker,  and  "  Ch's  Hubbard, 
George  Benham,  Moses  Hubbard  and  Wm.  Babcock"  the  endor- 
sers j  "  Noted  July  4,  '36,  J.  A.  C.,  N.  P.,  fees  65."  means  that  the 
note  had  been  protested  July  4,  1836,  by  John  A.  Coffin,  no- 
tary public,  and  that  his  fees  were  75  cents  ;  the  figures  "  36" 
in  "  July  4,  '36,"  are  evidently  a  mistake,  and  should  have 
been  July  4,  '37.  The  witness  further  stated  that  the  notary 
was  in  the  habit  of  allowing  Hendy  to  protest  notes  in  his 
name,  and  to  notify  endorsers ;  the  whole  business  was  con- 
ducted by  Hendy  without  the  superintendence  of  the  notary. 
Notices  for  each  of  the  endorsers  in  the  name  of  Coffin,  the  no- 
tary, were  sent  by  mail  to  Babcock,  who  lived  at  Penn  Yan,  and 
were  post  marked  Geneva,  July  5th.  The  defendant  Benham 
resided  at  Penn  Yan,  and  on  the  6th  of  July,  1837,  Babcock  put 
the  notice  for  Benham,  which  had  been  forwarded  from  Gene- 
va, in  the  post  office  at  Penn  Yan  directed  to  Benham.  The 
defendant  Benham  objected  to  receiving  the  memoranda  of  the 
deceased  clerk,  and  also  to  the  explanatory  evidence  of  the 
book  keeper,  and  the  objections  were  overruled.  He  moved 
for  a  nonsuit  on  the  following  grounds  :  1.  That  the  note  was 
not  regularly  protested,  that  the  evidence  of  demand  was  in- 
sufficient, and  that  Coffin  had  no  right  to  delegate  his  authori- 
ty as  notary  public  to  Hendy  ;  2.  That  leaving  the  notice  in  the 
post  office  at  Penn  Yan,  there  being  no  evidence  that  the  de- 
fendant received  it,  was  insufficient.  The  motion  for  a  nonsuit 
was  overruled.  Further  testimony  was  given,  and  some  other 
questions  raised,  after  which  the  cause  was  submitted  to  the 


ALBANY,  JANUARY,  18-13.  J3J 


Sheldon  r.  Benhain. 


jury,  who  found  a  verdict  for  the  plaintiff.     The  defendant 
now  moved  for  a  new  trial  on  a  case. 

//.  Wells,  for  the  defendant. 
A.  Gardiner,  for  the  plaintiff. 

By  the  Court,  BROKSON,  J.  It  is  quite  clear  tnat  the  notary 
could  not  delegate  his  official  authority  to  a  clerk.  (Onondaga 
Co.  Bank  v.  Bates,  3  Hill,  53.)  But  that  is  not  the  question. 
The  plaintiff  claims  nothing  on  the  ground  of  an  official  act  of 
the  notary.  The  question  is  upon  demand  and  notice,  and  the 
plaintiff  resorts  to  the  memoranda  of  Hendy,  who  had  died  be- 
fore the  trial.  He  was  a  teller  in  the  bank  as  well  as  clerk  to 
the  notary,  and  it  matters  not  whether  he  attended  to  business 
of  this  kind  on  the  retainer  of  the  notary,  or  as  a  part  of  his 
duty  to  the  bank.  It  is  enough  that  he  acted  on  this  occasion 
in  the  usual  course  of  his  employment,  and  being  dead,  the  en- 
tries which  he  made  at  the  time  were  properly  received  in  evi- 
dence. The  rule  for  admitting  them  is  not  confined  to  entries 
made  by  public  officers.  (Nichols  v.  Goldsmith,  7  Wend.  160  ; 
Welsh  v.  Barrett,  15  Mass.  R.  380.)(o.)  Where  there  is  any 
room  for  doubt,  it  is  for  the  jury  to  say  how  much  the  entries 
prove. 

1  see  no  objection  to  the  testimony  of  the  book  keeper  in 
relation  to  these  memoranda.  He  was  not  called  to  give  a 
construction,  or  to  declare  the  legal  effect  of  a  written  instru- 
ment ;  but,  as  a  person  skilled  in  such  matters,  to  tell  the  jury 
what  words  these  short  entries  stood  for.-  It  is  not  unlike  the 
case  of  an  instrument  written  in  a  foreign  tongue,  where  a 
translator  may  be  called  in  to  tell  the  jury  how  the  instrument 
reads. (6)  I  think  the  evidence  was  properly  received. 


(a;  Se«  Brnester  v.  Doane,  (2  Hill,  537.) 

(b)  As  to  the  general  doctrine  on  this  subject,  see  Cowen  £  Hill's  Notes  to  Phil. 
EC.  1418,  1419,  and  the  cases  there  cited;  also  Wigram  on  Extr.  Ev.  48,  9,  3d 
ed. ;  Gresl.  Eq.  Ev.  198,  9. 

Where  the  difficulty  arises  from  the  obscurity  of  the  writing  itaclf— e.  g.  if  it  b* 


132  CASES  IN  THE  SUPREME  COURT. 

Sheldon  v.  Bcnham. 

As  the  fourth  of  July  is  a  public  holiday,  the  demand  should 
have  been  made  on  the  third.  (Ransom  v.  Mackj  2  Hill, 
587.)  But  the  objection  taken  at  the  trial  did  not  go  to  the 
clay  on  which  the  demand  was  made,  but  to  the  manner  in 
which  the  business  was  done.  If  objection  had  been  taken  to 
the  day,  it  may  be  that  the  plaintiff  would  have  avoided  the 
difficulty  by  giving  further  evidence. 

It  seems  to  have  been  assumed  on  the  trial  that  Babcock 
owned  the  note,  and  sent  it  to  the  bank,  where  it  was  made 
payable,  for  collection.  Notice  was  sent  to  Babcock,  the  last 
endorser,  with  notices  for  the  other  endorsers  ;  and  if  he  was 
not  mistaken  as  to  the  proper  mode  of  service,  he  gave  notice 


illegible  from  lapse  of  time,  accident  &c. — one  skilled  in  deciphering  may  be 
called ;  as,  for  instance,  a  clerk  from  the  post  office.  (Gresl.  Eq.  Ev.  198, 9  ;  Cow- 
en  $•  Hill's  Notes  to  Phil.  Ev.  1419.)  Mr.  Greenleaf  remarks  that,  in  such  cases, 
the  question  "  is  to  be  determined  by  the  court  alone,"  (Greenl.  Ev.  319,)  and  for 
this  he  cites  a  nisi  prius  decision  said  to  have  been  made  by  Lord  Denman.  (Re- 
mon  v.  Haywood,  2  A dol.  <J-  Ellis,  666,  note.)  The  very  point  arose  in  Armstrong 
v.  Burrows,  (6  Watts1  Rep.  266.)  There  the  parties,  on  a  trial  in  the  common 
pleas,  differed  about  the  date  of  a  receipt  which  had  been  rendered  illegible  ;  the 
one  contending  that  it  was  dated  in  1823,  and  the  other  'that  the  date  was  1824. 
The  court  assumed  the  exclusive  right  of  determining  what  the  figures  were,  and 
refused  to  put  the  case  to  the  jury.  On  this  ground  error  was  brought  to  the  su- 
preme court,  where  the  judgment  of  the  common  pleas  was  reversed.  Gibson,  Ch. 
J.,  who  delivered  the  opinion  of  the  supreme  court,  observed :  "  A  writing  is  read 
before  it  is  expounded,  and  the  ascertainment  of  the  words  is  finished  before  the 
business  of  exposition  begins.  If  the  reading  of  a  judge  were  not  matter  of  fact, 
witnesses  would  hot  be  heard  in  contradiction  of  it ;  and  though  he  is  supposed  to 
have  peculiar  skill  in  the  meaning  and  construction  of  language,  neither  his  busi- 
ness nor  learning  is  supposed  to  give  him  a  superior  knowledge  of  figures  or  letters. 
His  right  to  interpret  a  paper  written  in  Coptic  characters,  would  be  the  same  that 
it  is  to  interpret  an  English  writing ;  yet  the  words  would  be  approached  only 
through  a  translation.  The  jury  were,  therefore,  not  only  legally  competent  to 
read  the  disputed  word,  but  bound  to  ascertain  what  it  was  meant  to  represent." 
(Id.  268.)  la  Jackson  ex  dem.  Swain  and  others  v.  Ransom,  (18  John.  Rep. 
107,)  a  similar  question  was  submitted  to  the  jury ;  and  this  course  accords  in  prin- 
ciple with  several  cases  decided  in  the  English  court  of  chancery.  (Masters  v. 
Masters,  1  P.  Williams,  421,  425  ;  Norman  v.  Morrell,  4  Ves.  769,  77G  ;  Goblet 
v.  Becchey,  3  Sim.  24,  more  fully  stated  in  Wigram  on  Extr.  EC.  185,  3d  ed.) 


ALBANY,  JANUARY,  1843.  133 

The  People  t.  Boh. 

to  the  defendant  Benbam  on  the  same  day  or  the  day  after  he  re- 
ceived advices  from  the  bank.  Either  day  was  sufficient.  (How- 
ard v.  Ives,  I  Hill,  263  ;  Bank  of  the  United  States  v.  Darns, 
2  id.  451.)  But  as  Babcock  and  the  defendant  Benham  both 
lived  in  the  same  village,  I  think  the  service  should  have  been 
personal,  or  by  leaving  the  notice  at  the  dwelling  house  or 
place  of  business  of  the  endorser,  and  that  service  through  the 
post  office  was  not  sufficient.  The  post  office  is  not  a  place  of 
deposit  for  notices  to  endorsers,  except  where  the  notice  is  to 
be  transmitted  by  mail  to  another  office.  (Ransom  v.  Mack, 
2  Hill,  587.)  None  of  our  cases  have  gone  further  than  that. 

New  trial  granted. 


THE  PEOPLE  vs .  BUSH. 

In  an  indictment  under  2  R.  S.  698,  $  3,  for  attempting  to  commit  an  offence,  the 
particular  manner  in  which  the  attempt  was  made  is  immaterial,  and  need  not 
be  alleged. 

On  the  trial  of  an  indictment  under  the  above  statute  for  an  attempt  to  commit 
arson,  it  was  shown  that  the  prisoner  solicited  one  K.  to  set  fire  to  a  barn,  and 
gave  him  materials  for  the  purpose ;  held,  sufficient  to  warrant  a  conviction, 
though  the  prisoner  did  not  mean  to  be  present  at  the  commission  of  the  offence, 
and  K.  never  intended  to  commit  it. 

Semble,  that  merely  soliciting  one  to  commit  a  felony,  without  any  other  act  being 
done,  is  sufficient  to  warrant  a  conviction  under  the  statute. 

CERTIORARI  to  the  Livingston  general  sessions,  where  Bush 
was  tried  and  convicted  of  an  attempt  to  commit  arson.  The 
first  count  of  the  indictment  charged  that  the  defendant,  on 
&c.,  at  &c.,  did  attempt  unlawfully,  feloniously  and  wilfully  to 
set  fire  to  a  certain  barn  of  John  Sheldon,  situate  &c.,  with 
intent  to  injure  the  said  Sheldon,  against  the  form  of  the  stat- 
ute &c.  The  second  and  third  counts  were  similar.  The 
fourth  count  charged  that  the  defendant,  on  &c.,  at  &c.,  false- 
ly, wickedly  &c.  did  solicit  and  incite  one  Kinney,  unlawfully, 


134  CASES  IN  THE  SUPREME  COURT. 

The  People  v.  Bush. 

feloniously  &c.,  in  the  night  time,  to  set  fire  to  a  certain  barn 
of  said  Sheldon,  situate  &c.,with  intent  to  injure  said  Sheldon, 
against  the  peace  of  the  people  &c. 

The  proof  given  at  the  trial  was,  that  the  defendant  request- 
ed one  Kinney  (named  in  the  fourth  count  of  the  indictment) 
to  set  fire  to  Sheldon's  barn,  offering  him  a  reward  ;  that  after- 
wards, understanding  and  believing  Kinney  would  set  fire  to 
the  barn,  the  defendant  gave  him  a  match  for  the  purpose,  not 
meaning  to  be  present  himself  at  the  doing  of  the  act.  It 
clearly  appeared,  however,  that  Kinney  never  intended  to  com- 
mit the  crime.  The  court  instructed  the  jury  that  the  evi- 
dence was  sufficient  to  bring  the  case  within  the  statute,  (2  R. 
S.  698,  ^  3,)  and  to  sustain  either  of  the  first  three  counts  in 
the  indictment.  The  defendant  excepted.  After  verdict,  judg- 
ment was  suspended  and  the  proceedings  brought  here  by  cer- 
tiorari  pursuant  to  2  R.  S.  736,  ^  27. 

J.  Young,  for  the  defendant. 

G.  Hastings ,  (district  attorney,)  contra. 

By  the  Court,  COWEN,  J.  The  2  R.  S.  583,  2d  ed.  §  3,  is, 
that  "  every  person  who  shall  attempt  to  commit  an  offence 
prohibited  by  law,  and  in  such  attempt  shall  do  any  act  to- 
wards the  commission  of  such  offence,  but  shall  fail  in  the  per- 
petration thereof,  or  shall  be  prevented  or  intercepted  in  exe- 
cuting the  same  ;  upon  conviction  thereof  shall,  in  cases  where 
no  provision  is  made  by  law  for  the  punishment  of  such  at- 
tempt, be  punished  as  follows,"  &c.  An  attempt,  as  charged 
in  either  of  the  first  three  counts,  would  subject  the  prisoner  to 
punishment  in  the  state  prison.  If  the  offence  proved  be  not 
within  the  statute,  but  confined  to  the  fourth  count,  it  is  a  mere 
misdemeanor.  (1  Russ.  on  Cr.  49,  Jim.  ed.  of  1836.) 

An  attempt  in  any  form  to  commit  an  offence  is  within  the 
statute ;  and  the  particular  manner  in  which  the  attempt  was 


"*•'     ALBANY,  JANUARY,  1843.  135 

__  The  People  t>.  Bush. 

made  need  not  be  pointed  out  by  the  indictment.  The  case 
relied  on  by  the  prisoner's  counsel,  (Rex  v.  Carr,  Russ.  fy  Ry. 
377,)  arose  under  Lord  Ellenborough's  act,  (43  Geo.  3,  ch.  8,) 
which  prescribes  the  means  of  making  the  attempt,  viz.  if  any 
person  shall  "  level  any  kind  of  loaded  fire  arms,  and  attempt 
by  drawing  a  trigger,  or  in  any  other  manner,"  &c.  The  in- 
dictment charged  an  attempt  by  pulling  the  trigger  of  a  loaded 
blunderbuss.  The  proof  was  that  it  had  no  priming.  The  judges 
held,  therefore,  that  not  being  loaded  so  as  to  be  capable  of  do- 
ing mischief  by  having  the  trigger  drawn,  it  was  not  loaded 
within  the  meaning  of  the  statute.  No  question  was  made  of 
the  act  being  an  offence ;  but  only  one  of  variance  from  the 
statute  to  which  the  indictment  referred. 

The  act  imputed  to  Bush  was  no  doubt  an  attempt  to  com- 
mit an  offence.  It  is  admitted  that  he  ndeavored  to  make 
himself  an  accessory  before  the  fact ;  and  to  become  an  acces- 
sory is,  in  itself,  an  flfence.  A  mere  solicitation  to  commit  a 
felony  is  an  ffence,  whether  it  be  actually  committed  or  not. 
This  was  held  in  The  Kingv  .  Higgins,  (2  East,  5.)  In  the 
case  before  us  there  was  more.  The  solicitation  was  followed 
by  furnishing  the  instrument  of  mischief.  The  question  of 
principal  and  accessory  does  not  arise,  as  it  would  have  done 
provided  the  crime  had  actually  been  committed.  Had  it  been 
committed,  the  attempt  would  have  been  merged  in  an  actual 
felony — a  crime  of  another  species.  There  would  have  been  a 
principal  arson  by  Kinney  and  an  accessorial  offence  by  Bush. 
The  attempt  of  the  latter  was  to  have  both  crimes  commit- 
ted ;  and  the  question  of  principal,  and  accessory  not  being  in 
the  case,  I  see  nothing  against  considering  the  matter  in  the 
light  of  the  ordinary  rule,  that  what  a  man  does  by  anoth- 
er he  does  by  himself;  in  other  words,  the  course  taken  to 
commit  the  arson  by  the  hand  of  Kinney,  was  the  same  thing, 
in  legal  effect,  as  if  Bush  had  intended  to  set  the  fire  personally, 
and  had  taken  steps  preparatory  to  that  end.  An  attempt  may 
be  immediate — an  assault,  for  instance  ;  but  it  very  commonly 
means  a  remote  effort,  or  indirect  measure  taken  with  intent  to 


136  CASES  IN  THE  SUPREME  COURT. 

Supervisor  of  Galway  v.  Stimson. 

effect  an  object.  An  abundance  of  illustration  will  be  found  in 
The  King  v.  Higgins,  especially  in  the  learned  and  copious 
arguments  of  the  counsel.  An  approved  writer  on  criminal 
law  speaks  of  the  act  of  solicitation  in  that  case  as  belonging 
to  the  class  of  attempts.  (1  Russ.  on  Cr.  49,  Jim.  ed.  of '36.) 
The  offence  proved  against  Bush  was,  therefore,  within  the 
words,  and  we  think  within  the  meaning  of  the  statute. 

New  trial  denied. 


THE  SUPERVISOR  OF  THE  TOWN  or  GALWAY  vs.  STIMSON. 

As  a  general  rule,  ah  public  officers,  though  not  expressly  authorized  to  sue  by 

statute,  have  a  capacity  to  sue  commensurate  with  their  public  trusts  and  duties. 

Per  BRONSON,  J. 
In  actions  either  by  or  against  any  of  the  officers  named  in  2  R.  S.  473,  §  92,  the 

individual  name  of  the  incumbent  must  be  used,  with  the  addition  of  his  name 

of  office. 
Accordingly,  where  the  action  was  in  the  name  of  "  The  supervisor  of  the  town 

of  £.,"  without  mentioning  the  name  of  the  incumbent ;  held,  that  it  could  not 

be  maintained. 

DECLARATION  as  follows  :  Saratoga  county,  ss.  The  super- 
visor of  the  town  of  Galway  in  said  county,  plaintiff  in  this 
suit,  by  E.  O.  S.  his  attorney,  complains  of  Earl  Stimson,  de- 
fendant in  this  suit,  by  declaration  &c.  ;  for  that  whereas  the 
said  defendant  on  &c.  at  &c.  was  indebted  to  the  said  plaintiff 
in  the  sum  &c. — and  so  proceeding  with  the  common  money 
counts  in  assumpsit.  Demurrer  and  joinder. 

S.  Stevens,  for  the  defendant. 
JV.  Hill,  Jr.  for  the  plaintiff. 

,By  the  Court,  BRONSON,  J.  At  the  common  law,  in  ad- 
dition to  suits  by  individuals  and  corporations,  there  are 


ALBANY,  JANUARY,  1843.  137 

Supervisor  of  Galway  t>.  Stimaon. 

some  collective  bodies,  which,  although  not  strictly  corpora- 
tions, have  been  invested  by  law  with  certain  corporate  powers, 
and  may  sue  in  respect  to  the  matters  specially  committed  to 
their  charge.  And,  in  general,  all  public  officers,  though  not 
expressly  authorized  by  statute,  have  a  capacity  to  sue  com- 
mensurate with  their  public  trusts  and  duties.  (Overseers 
of  Pittstown  v.  Overseers  of  Plattsburgh,  18  John.  407  ;  Todd 
\.  Birdsall,  1  Cowen,  260,  and  note,  p.  261—4,  where  most  of 
the  cases  are  collected  ;  and  see  Palmer  v.  Vanderiburgh,  3 
Wend.  193  ;  Silver  v.  Cummings,  7  Wend.  181 ;  Avery  v. 
Slack,  19  Wend.  50.)  When  the  suit  is  by  a  public  officer,  it 
is  brought  in  the  proper  name  of  the  individual,  with  (he  ad- 
dition of  his  name  of  office.  I  have  met  with  no  precedent 
of  a  declaration  like  the  one  now  before  us,  where  the  suit  is 
in  the  name  of  the  office,  without  mentioning  the  incumbent. 
It  seems  to  be  a  suit  by  the  office  of  supervisor,  and  not  by  the 
officer,  and  cannot,  I  think,  be  maintained. 

Supervisors  of  towns,  and  several  other  public  officers,  are 
now  expressly  authorized  by  statute  to  sue.  (2  R.  S.  473,  § 
92.)  And  although  the  section  which  confers  tHe  power  does 
not  specify  the  particular  manner  in  which  the  officer  shall  pro- 
ceed, it  is  plain  enough  from  what  follows  that  the  legislature 
intended  the  individual  should  be  named.  When  officers  are 
sued,  the  action  must  be  "  brought  against  them  individually, 
specifying  in  the  process,  pleadings,  and  proceedings,  their 
name  of  office."  (§  96.)  And  "  no  suit  commenced  by  or 
against  any  officers  named  in  this  article,  shall  be  abated  or 
discontinued  by  the  death,"  removal  or  resignation  of  such 
officers,  or  the  expiration  of  their  term  of  office  ;  but  the  court 
in  which  the  action  is  pending  "  shall  substitute  the  names  of 
the  successors  in  such  office."  (^  100.)  If  the  suit  were 
brought  by  or  against  the  office,  instead  of  the  officer,  as  is 
done  here,  there  could  be  no  occasion  for  a  substitution  ;  for 
the  office^never  dies,  resigns  or  expires,  nor  is  it  ever  removed. 
This  provision,  makes  it  quite  evident  that  the  legislature  sup- 
posed the  individual  was  to  be  named,  as  well  where  the  suit 

VOL.  IV.  18 


138  CASES  IN  THE  SUPREME  COURT. 

Bishop  v.  Bishop. 

was  brought  by,  as  against  a  public  officer.  And  upon  that 
supposition  the  statute  proceeds  to  relieve  the  officer  from  the 
burden,  which  might  otherwise  come  upon  him,  of  paying  the 
judgment,,  and  makes  the  sum  recovered  a  charge  either  upon 
the  funds  in  the  hands  of  the  officer,  or  upon  the  town  or  coun- 
ty, as  the  case  may  be.  (§  102 — 8.)  When  a  judgment  is  re- 
covered against  the  supervisor  of  a  town,  no  execution  can  be 
awarded,  unless  the  recovery  be  for  the  costs  of  a  suit  com- 
menced by  the  officer  in  his  individual  name  j  that  is  to  say, 
where  he  sues  as  an  individual  without  adding  his  official 
character.  (§  107,  and  Jlvery  v.  Slack,  19  Wend.  50.)  When 
he  names  himself  supervisor,  and  the  action  is  properly  brought 
in  that  character,  if  judgment  passes  against  him,  the  execution 
is  stayed,  and  the  money  is  either  to  be  paid  out  of  the  funds 
in  his  hands,  (§  105,)  or  to  be  levied  by  tax  on  the  town. 
(^  102,  3.)  This  makes  a  complete  system,  in  which  justice 
is  done  to  the  public  and  its  servants,  and  to  those  who  may 
have  a  legal  controversy  with  public  officers. 

We  are  of  opinion  that  the  individual  who  holds  the  office, 
as  well  as  the  office  itself,  should  have  been  named  in  the 
declaration,  and  that  the  action  in  its  present  form  cannot  be 
maintained. 

Judgment  for  the  defendant 


BISHOP  and  others  vs.  BISHOP. 

Where  a  testator  in  1825  executed  a  will  devising  certain  real  estate  to  his  son, 
and  died  in  1840 ;  held,  that  though  the  son  died  in  1833,  the  estate  vested  in 
his  children,  and  not  in  the  heirs  at  law  of  the  testator. 

Otherwise,  if  the  testator  had  survived  the  devisee,  and  died  before  the  revised 
statutes  took  effect 

EJECTMENT,  tried  before  DAYTON,  C.  Judge,  at  the  Living- 
ston circuit,  in  September,  1842.  Clement  Bishop,  junior,  be- 
ing seized  of  two  parcels  of  land  in  Avon,  Livingston  county- 


t 

ALBANY,  JANUARY,  i843.  (39 


Bishop  v.  Bishop. 


the  premises  in  question  in  this  suit— on  the  26th  day  of  Au- 
gust, 1825,  made  his  last  will,  by  which  he  devised  this 
property  to  his  son  Clement  Bishop,  junior,  without  any  words 
of  inheritance,  but  with  such  a  personal  charge  on  the  devisee 
as  would  carry  a  fee.  The  devisee  died  in  the  lifetime  of  the 
testator,  on  the  20th  of  September,  1833,  leaving  the  defen- 
dant George  Bishop  his  heir  at  law.  The  testator  died  in  Sep- 
tember, 1840,  leaving  three  children  and  the  children  of  two 
deceased  children  him  surviving.  The  plaintiffs,  Asa  Bishop 
and  Elizabeth  Turner,  are  two  of  the  children  of  the  testator, 
and  claim  to  recover  two-fifths  of  the  premises  in  question  as 
his  heirs  at  law,  on  the  ground  that  the  devise  to  Clement 
Bishop,  junior,  lapsed  by  his  death  in  the  lifetime  of  the  testa- 
tor. The  defendant  is  the  son  and  heir  at  law  of  the  devisee, 
and  claims  to  hold  in  fee  under  the  devise  to  his  father.  A 
verdict  was  rendered  for  the  plaintiffs,  subject  to  the  opinion 
of  the  court  on  the  question  whether  this  was  a  lapsed  devise. 

A.  Gardiner,  for  the  plaintiffs. 
J.  Young,  for  the  defendant. 

By  the  Court,  BRONSON,  J.  By  the  law  as  it  stood  in  1825, 
when  the  will  was  made,  the  devise  to  Clement  Bishop,  junior, 
would  have  lapsed  on  his  death  in  the  lifetime  of  the  testator, 
and  the  estate  would  have  gone  to  the  heirs  at  law  of  the  testa- 
tor. But  the  statute  which  took  effect  in  1830,  ten  years  be- 
fore the  testator  died,  has  given  a  different  direction  to  the 
property,  and  it  now  goes  to  the  heir  at  law  of  the  devisee, 
where,  as  in  this  case,  such  heir  is  a  descendant  of  the  devisee, 
and  the  devisee  is  a  descendant  of  the  testator.  (2  J?.  S.  66, 
§  52.)  The  will  did  not  take  effect  until  the  testator  died, 
which  was  in  1840,  and  then  the  case  fell  under  the  influence  of 
the  new  statute.  ( De  Peysterv.  Clendining,  (8  Patge,295, 304.) 
Section  seventy,  (2  R.  S.  p.  68,)  only  goes  to  the  execution  and 


140  CASES  IN  THE  SUPREME  COURT. 

Taylor  v.  Porter. 

construction  of  wills  made  prior  to  1830,  and  does  not  touch 
this  question.  As  the  devise  has  not  failed,  the  plaintiffs  can- 
not recover. 

Judgment  for  the  defendant. 


TAYLOR  vs.  PORTER  &  FORD. 

The  statute  (1  R.  S.  513,  §  77  et  seq.)  authorizing  a  private  road  to  be  laid  out 
over  the  lands  of  a  person,  without  his  consent,  is  unconstitutional  and  void. 
NELSON,  Ch.  J.  dissented. 

The  legislature  can  only  exercise  such  powers  as  have  been  delegated  to  it,  and 
when  it  transcends  these  limits,  its  acts  are  utterly  void.  Per  BRONSON,  J. 

The  effect  to  be  given  to  a  general  grant  of  legislative  power  like  that  contained 
in  Art.  1,  §  1  of  the  constitution  of  this  state,  considered  and  discussed. 

The  phrase  law  of  the  landt  in  Art.  7,  §  1  of  the  constitution,  imports  a  suit,  trial 
and  judgment  according  to  the  course  of  the  common  law,  or  in  the  established 
and  usual  mode  of  contesting  individual  rights.  Per  BRONSON,  J. 

So  as  to  the  phrase  due  process  of  law,  in  Art.  7,  §  7  of  the  constitution.  Per 
BRONSON,  J. 

Private  property  cannot  be  taken  even  for  public  use,  without  making  just  com- 
pensation to  the  owner. 

TRESPASS  for  breaking  and  entering  the  plaintiff's  close  at 
Milton,  in  the  county  of  Saratoga,  on  the  1st  of  May,  1841, 
and  on  divers  other  days  and  times  &c.,  and  digging  up, 
subverting  and  carrying  away  the  earth  and  soil,  and  breaking 
down,  prostrating  and  destroying  the  plaintiff's  fence ;  and 
also  for  making  and  laying  out  a  private  road  through  and  over 
the  plaintiff's  close,  whereby  he  was  prevented  from  having 
the  use,  benefit  and  enjoyment  thereof,  to  the  damage  &c. 
Plea  in  justification,  that  before  the  said  time  when  &c.,  to 
wit,  on  the  18th  of  May,  1840,  the  defendants  were  and  still  are 
seised  and  possessed  of  a  certain  close  contiguous  and  next 
adjoining  to  the  plaintiff's  close,  and  on  that  day  the  defen- 
dants made  application  in  writing  to  the  commissioners  of 
highways  of  the  town  of  Milton,  in  which  town  the  plaintiff's 
close  was  situated,  to  lay  out  a  private  road  from  the  highway 


ALBANY,  JANUARY,  1843.  14] 

Taylor  t>.  Porter. 

adjoining  the  plaintiff's  close,  through  that  close  to  the  close 
of  the  defendants.  The  defendants  then  alleged  in  detail  the 
doing  of  the  several  things  required  by  the  statute  for  laying 
out  private  roads,  and  that  the  commissioners  oh  the  24th  of 
July,  1840,  made  an  order  in  writing  laying  out  a  private 
road  from  the  highway  through  the  plaintiff's  close  to  the  close 
of  the  defendants,  a  distance  of  545  feet,  and  of  the  width  of 
three  rods,  for  the  use  of  the  said  defendants,  their  and  each 
of  their  heirs  and  assigns.  The  defendants  then  alleged  that 
the  commissioners  caused  a  record  to  be  made  of  the  road,  and 
averred  in  detail  the  proceedings  required  by  the  statute  for  as- 
sessing the  plaintiff's  damages,  and  an  assessment  made  on  the 
10th  of  March,  1841.  The  amount  of  the  damages  was  not 
stated  in  the  plea,  nor  was  there  any  averment  that  the  damages 
had  been  paid  or  tendered  to  the  plaintiff.  By  virtue  of  the 
several  proceedings  aforesaid,  the  defendants  justified  the  entry 
&c.  and  the  several  acts  complained  of,  doing  no  unnecessary 
damage  to  the  plaintiff  &c.,  and  concluding  with  a  verification 
Demurrer  and  joinder. 

G.  H.  Mumford,  for  the  plaintiff,  made  two  points,  viz.  : 
1.  That  the  statute  authorizing  the  laying  out  of  private  roads 
was  unconstitutional  and  void  ;  and  2.  That  the  plea  was  bad 
for  not  averring  a  payment  or  tender  of  the  damages. 

JV.  Hill  Jr.  for  the  defendants. 

BRONSON,  J.  Every  person  liable  to  be  assessed  for  high- 
way labor,  may  apply  to  the  commissioners  of  highways  of 
the  town  in  which  he  resides  to  lay  out  a  road.  Whenever 
application  is  made  to  the  commissioners  for  a  private  road, 
they  are  to  summon  twelve  freeholders  of  the  town  to  meet 
on  a  day  certain,  of  which  notice  must  be  given  to  the  owner 
or  occupant  of  the  land  through  which  it  is  proposed  to  lae 
out  the  road.  The  freeholders,  when  met  and  sworn,  ary 
to  view  the  lands  through  which  the  road  is  applied  for, 
and  if  they  determine  that  the  road  is  necessary,  they  are 


142  CASES  IN  THE  SUPREME  COURT. 

Taylor  r.  Porter. 

to  make  and  subscribe  a  certificate  in  writing  to  that  effect,  and 
the  commissioners  are  required  thereupon  to  lay  out  the  road, 
and  cause  a  record  of  it  to  be  made  in  the  town  clerk's  office. 
The  damages  of  the  owner  of  the  land  through  which  the  road 
is  laid,  if  not  adjusted  by  agreement,  are  to  be  assessed  by  a 
jury  of  six  freeholders  of  some  other  town,  and  are  to  be  paid  by 
the  person  applying  for  the  road.  "  Every  such  private  road, 
•when  so  laid  out,  shall  be  for  the  use  of  such  applicant,  his 
heirs  and  assigns;  but  not  to  be  converted  to  any  other  use  or 
purpose  than  that  of  a  road.  JVbr  shall  the  occupant  or  owner 
of  the  land  through  which  such  road  shall  be  laid  outy  be  per- 
mit fed  to  use  the  same  cs  a  rco.d,  unless  he  shall  have  signified 
his  intention  of  so  making  use  of  the  same,  to  the  jury  or  com- 
missioners who  ascertained  the  damages  sustained  by  laying 
out  such  road,  and  before  such  damages  were  so  ascertained." 
(1  R.  S.  513,  §  54, 77—79.)  Th.e  road  is  paid  for  and  owned 
by  the  applicant.  The  public  has  no  title  to,  nor  interest  in  it. 
No  citizen  has  a  right  to  use  the  road  as  he  does  the  public 
highway.  He  can  only  use  it  when  he  has  business  with  the 
road  owner,  or  some  other  lawful  occasion  for  going  to  the 
land  intended  to  be  benefitted  by  the  road.  He  can  only  justi- 
fy an  entry  on  the  road,  when  he  could  justify  an  entry  on  the 
land  on  account  of  which  the  road  was  laid  out.  Even  the 
owner  of  the  land  over  which  the  road  passes,  unless  he  has 
given  notice  of  such  an  intention  before  the  damages  are  as- 
sessed, has  no  right  to  use  the  road  for  his  own  purposes ;  and 
if  he  does  so,  or  if  his  fences  encroach  upon  the  road,  the 
owner  of  the  road  may  have  an  action  against  him.  (Lambert 
v.  Hoke,  14  John.  383  ;  Herrick  v.  Stover,  5  Wend.  580.)  In 
short,  the  road  is  the  private  property  of  the  applicant.  In 
the  words  of  the  statute,  the  road  "  shall  be  for  the  use  of  such 
applicant,  his  heirs  and  assigns." 

This  right  of  way  is  an  incorporeal  hereditament,  in  which 
the  owner  has  an  estate  of  inheritance.  The  owner  of  the  land 
over  which  the  road  is  laid  has  not  lost  the  entire  fee,  but  he  has 
lost  the  beneficial  use  and  enjoyment  of  his  property  forever.  It 


ALBANY,  JANUARY,  1843.  143 

Taylor  r.  Porter. 

is  not,  however,  material  to  enquire  what  quantum  of  interest 
has  passed  from  him.  It  is  enough  that  some  interest — some 
portion  of  his  estate,  no  matter  how  small — has  been  taken 
from  him  without  his  consent.  The  property  of  A.  is  taken, 
without  his  permission,  and  transferred  to  B.  Can  such  a  thing 
be  rightfully  done  ?  Has  the  legislature  any  power  to  say  it 
may  be  done  ? 

I  will  not  stop  to  enquire  whether  the  damages  must  not  be 
paid  before  the  title  will  pass.  The  difficulty  lies  deeper  than 
that.  Whatever  sum  may  be  tendered,  or  however  ample  may 
be  the  provision  for  compensation,  the  question  still  remains, 
can  the  legislature  compel  any  man  to  sell  his  land  or  his  goods, 
or  any  interest  in  them,  to  his  neighbor,  when  the  property  is 
not  to  be  applied  to  public  use  1  Or,  must  it  be  left  to 
the  owner  to  say,  when,  to  whom,  and  upon  what  terms  he  will 
part  with  his  property,  or  whether  he  will  part  with  it  at  all  ? 

The  right  to  take  private  property  for  public  purposes  is  one 
of  the  inherent  attributes  of  sovereignty,  and  exists  in  every 
independent  government.  Private  interests  must  yield  to  pub- 
lic necessity.  But  even  this  right  of  eminent  domain  cannot 
be  exercised  without  making  just  compensation  to  the  owner 
of  the  property.  (Const.  Art.  7,  §  6.)  And  thus,  what  would 
otherwise  be  a  burden  upon  a  single  individual,  has  been  made 
to  fall  equally  upon  every  member  of  the  state.  But  there  is 
no  provision  in  the  constitution  that  just  compensation  shall  be 
made  to  the  owner  when  his  property  is  taken  for  private  pur 
poses  ;  and  if  the  power  exists  to  take  the  property  of  one  man 
without  his  consent  and  transfer  it  to  another,  it  may  be  exer- 
cised without  any  reference  to  the  question  of  compensation. 
The  power  of  making  bargains  for  individuals  has  not  been 
delegated  to  any  branch  of  the  government,  and  if  the  title  of 
A.  can,  without  his  fault,  be  transferred  to  B.,  it  may  as  well 
be  done  without  as  with  a  consideration.  This  view  of  the 
question  is  sufficient  to  put  us  upon  the  enquiry,  where  can  the 
power  be  found  to  pass  such  a  law  as  that  under  which  the  de- 
fendants attempt  to  justify  their  entry  upon  the  plaintiff's  land  ? 


144  CASES  IN  THE  SUPREME  COURT. 

Taylor  v.  Porter. 

It  is  not  to  be  presumed  that  such  a  power  exists,  and  those 
who  set  it  up  should  tell  where  it  may  be  found. 

Under  our  form  of  government  the  legislature  is  not  supreme. 
It  u  only  one  of  the  organs  of  that  absolute  sovereignty  which 
resides  in  the  whole  body  of  the  people.  Like  other  depart- 
ments of  the  government,  it  can  only  exercise  such  powers  as 
have  been  delegated  to  it  j  and  when  it  steps  beyond  that  boun- 
dary, its  acts,  like  those  of  the  most  humble  magistrate  in  the 
state  who  transcends  his  jurisdiction,  are  utterly  void.  Where, 
then,  shall  we  find  a  delegation  of  power  to  the  legislature  to 
take  the  property  of  A.  and  give  it  to  B.,  either  with  or  with- 
out compensation  ?  Only  one  clause  of  the  constitution  can  be 
cited  in  support  of  the  power,  and  that  is  the  first  section  of 
the  first  article,  where  the  people  have  declared  that  "  the  le- 
gislative power  of  this  state  shall  be  vested  in  a  senate  and  as- 
sembly." It  is  readily  admitted  that  the  two  houses,  subject 
only  to  the  qualified  negative  of  the  governor,  possess  all  "  the 
legislative  power  of  this  state  ;"  but  the  question  immediately 
presents  itself,  what  is  that  "  legislative  power,"  and  how  far 
does  it  extend-?  Does  it  reach  the  life,  liberty  or  property 
of  a  citizen  who  is  not  charged  with  a  transgression  of  the 
laws,  and  when  the  sacrifice  is  not  demanded  by  a  just  regard 
for  the  public  welfare  1  In  Wilkinson  v.  Leland,  (2  Peters, 
657,)  Mr.  Justice  Story  says  :  "  The  fundamental  maxims  of  a 
free  government  seem  to  require  that  the  rights  of  personal 
liberty  and  private  property  should  be  held  sacred.  At  least, 
no  court  of  justice  in  this  country  would  be  warranted  in  as- 
suming that  the  power  to  violate  and  disregard  them — a  pow- 
er so  repugnant  to  the  common  principles  of  justice  and  civil 
liberty — lurked  under  any  general  grant  of  legislative  authority, 
or  ought  to  be  implied  from  any  general  expressions  of  the  will 
of  the  people.  The  people  ought  not  to  be  presumed  to  part 
with  rights  so  vital  to  their  security  and  well  being,  without 
very  strong  and  direct  expressions  of  such  an  intention."  He 
added  :  "  We  know  of  no  case  in  which  a  legislative  act  to 
transfer  the  property  of  A.  to  B.  without  his  consent,  has  ever 


ALBANY,  JANUARY,  1843.  145 

Taylor  t>.  Porter. 

been  held  a  constitutional  exercise  of  legislative  power  in  any 
state  in  the  union.  On  the  contrary,  it  has  been  constantly  re- 
sisted as  inconsistent  with  just  principles,  by  every  judicial  tri- 
bunal in  which  it  has  been  attempted  to  be  enforced."  (See  also 
2  Kent's  Coin.  13,  340,  and  cases  there  cited.)  The  security  of 
life,  liberty  and  property,  lies  at  the  foundation  of  the  social 
compact ;  and  to  say  that  this  grant  of  "  legislative  power"  in- 
cludes the  right  to  attack  private  property,  is  equivalent  to 
saying  that  the  people  have  delegated  to  their  servants  the 
power  of  defeating  one  of  the  great  ends  for  which  the  govern- 
ment was  established.  If  there  was  not  one  word  of  qualifica- 
tion in  the  whole  instrument,  I  should  feel  great  difficulty  in 
bringing  myself  to  the  conclusion  that  the  clause  under  con- 
sideration had  clothed  the  legislature  with  despotic  power ; 
and  such  is  the  extent  of  their  authority  if  they  can  take  the 
property  of  A.,  either  with  or  without  compensation,  and  give 
it  to  B.  "  The  legislative  power  of  this  state"  does  not  reach 
to  such  an  unwarrantable  extent.  Neither  life,  liberty  nor 
property,  except  when  forfeited  by  crime,  or  when  the  latter  is 
taken  for  public  use,  falls  within  the  scope  of  the  power.  Such, 
at  least,  are  my  present  impressions. 

But  the  question  does  not  necessarily  turn  on  the  section 
granting  legislative  power.  The  people  have  added  negative 
words,  which  should  put  the  matter  at  rest.  "  No  member  of 
this  state  shall  be  disfranchised,  or  deprived  of  any  of  the  rights 
or  privileges  secured  to  any  citizen  thereof,  unless  by  the  law 
of  the  land,  or  the  judgment  of  kis  peers."  (Const.  Art.  7, 
§  1.)  The  words  "by  the  law  of  the  land,"  as  here  used,  do 
not  mean  a  statute  passed  for  the  purpose  of  working  the 
wrong.  That  construction  would  render  the  restriction  abso- 
lutely nugatory,  and  turn  this  part  of  the  constitution  into  mere 
nonsense.  The  people  would  be  made  to  say  to  the  two 
houses,  "  You  shall  be  vested  with  '  the  legislative  power  of  the 
state  ;'  but  no  one  '  shall  be  disfranchised,  or  deprived  of  any 
of  the  rights  or  privileges'  of  a  citizen,  unless  you  pass  a  stat- 
ute for  that  purpose  :"  in  other  words,  "  You  shall  not  do  the 

VOL.  IV.  19 


146  CASES  IN  THE  SUPREME  COURT. 

Taylor  v.  Porter. 


wrong,  unless  you  choose  to  do  it."  The  section  was  taken 
with  some  modifications  from  a  part  of  the  29th  chapter  of 
Magna  Charta,  which  provided,  that  no  freeman  should  be 
taken,  or  imprisoned,  or  be  disseised  of  his  freehold  &c.,  but 
by  lawful  judgment  of  his  peers,  or  by  the  law  of  the,  land.  Lord 
Coke  in  his  commentary  upon  this  statute  says,  that  these 
words,  "by  the  law  of  the  land,"  mean  "by  the  due  course 
and  process  of  law ;"  which  he  afterwards  explains  to  be, 
"  by  indictment  or  presentment  of  good  and  lawful  men,  where 
such  deeds  be  done  in  due  manner,  or  by  writ  original  of  the 
common  law."  (2  Inst.  45,  50.)  In  North  Carolina  and 
Tennessee,  where  they  .have  copied  almost  literally  this  part  of 
the  29th  chapter  of  Magna  Charta,  the  terms  "  law  of  the  land" 
have  received  the  same  construction.  (Hoke  v.  Henderson,  4 
Dev.  1 ;  Jones  v.  Perry r,  10  Ferger,  59 ;  and  see  3  Story  on  Const. 
U.  S.  661 ;  2  Kent's  Com.  13.)  The  meaning  of  the  section  then 
seems  to  be,  that  no  member  of  the  state  shall  be  disfranchised, 
or  deprived  of  any  of  his  rights  or  privileges,  unless  the  mat- 
ter shall  be  adjudged  against  him  upon  trial  had  according  to 
the  course  of  the -common  law.  It  must  be  ascertained  judi- 
cially that  he  has  forfeited  his  privileges,  or  that  some  one  else 
has  a  superior  title  to  the  property  he  possesses,  before  either 
of  them  can  be  taken  from  him.  It  cannot  be  done  by  mere 
legislation. 

But  if  there  can  be  a  doubt  upon  the  first  section  of  the 
seventh  article,  there  can,  I  think,  be  none  that  the  seventh 
section  of  the  same  article  covers  the  case.  "  No  person  shall 
be  deprived  of  life,  liberty,  or  property,  without  due  process  of 
law  ;  nor  shall  private  property  be  taken  for  public  use,  with- 
out just  compensation."  In  the  Matter  of  Albany- Street ,  (li 
Wend.  149,)  where  it  was  held  that  private  property  could  not 
be  taken  for  any  other  than  public  use,  Chief  Justice  Savage 
went  mainly  upon  the  implication  contained  in  the  last  mem 
ber  of  the  clause  just  cited.  He  said  :  "  The  constitution,  by  au- 
thorizing the  appropriation  of  private  property  to  public  use, 
impliedly  declares,  that  for  any  other  use,  private  property 


ALBANY,  JANUARY,  1843.  147 

Taylor  t>.  Porter. 

shall  not  be  taken  from  one  and  applied  to  the  private  use  of 
another."  And  in  Blood  good  v.  The  Mohawk  4*  Hudson  Rail 
Road  Co.  (18  Wend.  59,)  Mr.  Senator  Tracy  said,  the  words 
should  be  construed  "  as  equivalent  to  a  constitutional  declara 
tion,  that  private  property,  without  the  consent  of  the  owner, 
shall  be  taken  only  for  the  public  use,  and  then  only  upon  a 
just  compensation."  I  feel  no  disposition  to  question  the 
soundness  of  these  views ;  but  still  it  seems  to  me  that  the 
case  stands  stronger  upon  the  first  member  of  the  clause  :  u  No 
person  shall  be  deprived  of  life,  liberty  or  property,  without 
due  process  of  law.11  The  words  "  due  process  of  law,"  in  this 
place,  cannot  mean  less  than  a  prosecution  or  suit  instituted 
and  conducted  according  to  the  prescribed  forms  and  solemni- 
ties for  ascertaining  guilt,  or  determining  the  title  to  property. 
It  will  be  seen  that  the  same  measure  of  protection  against 
legislative  encroachment  is  extended  to  life,  liberty  and  prop- 
erty ;  and  if  the  latter  can  be  taken  without  a  forensic  trial 
and  judgment,  there  is  no  security  for  the  others.  If  the  legis- 
lature can  take  the  property  of  A.  and  transfer  it  to  B.,  they 
can  take  A.  himself,  and  either  shut  him  up  in  prison,  or 
put  him  to  death.  But  none  of  these  things  can  be  done 
by  mere  legislation.  There  must  be  "  due  process  of  law." 
Perhaps  the  whole  clause  should  be  read  together,  (Matter 
of  John  and  Cherry  streets,  19  Wend.  659,)  and  then  if  it  do 
not,  as  I  have  supposed,  amount  to  a  direct  prohibition  against 
taking  the  property  of  one  and  giving  it  to  another,  it  con 
tains,  at  the  least,  an  implication  too  strong  to  be  resisted  that 
siii  h  an  act  cannot  be  done. 

Of  course,  I  shall  not  be  understood  as  saying  that  a  trial 
and  judgment  are  necessary  in  exercising  the  right  of  eminent 
domain.  When  private  property  is  taken  for  public  use,  the 
only  restriction  is,  that  just  compensation  shall  be  made  to  the 
owner.  But  when  one  man  wants  the  property  of  another,  I 
mean  to  say  that  the  legislature  cannot  aid  him  in  making  the 
acquisition. 

This  question  is  only  new  with  us  in  its  application  to  pri- 


148  CASES  IN  THE  SUPREME  COURT. 

Taylor  c.  Porter. 

vate  roads.  That  a  statute  is  unconstitutional  and  void  which 
authorizes  the  transfer  of  one  man's  property  to  another  with 
out  the  consent  of  the  owner,  and  although  compensation  is 
made,  was  adjudged  by  this  court  in  the  Matter  of  JHbany- 
streetj  (11  Wend.  149;)  and  again  in  the  Matter  of  John  and 
Cherry  streets,  (19  id.  659.)  The  same  doctrine  was  held  by 
the  chancellor  in  Varick  v.  Smith,  (5  Paige,  137  ;)  and  it  was 
admitted  by  all  the  members  of  the  court  of  errors  who  delivered 
opinions  in  Bloodgood  v.  The  Mohawk  and  Hudson  R.  R.  Co., 
(18  id.  9.)  I  might  have  contented  myself  with  referring  to 
these  cases  as  settling  the  question ;  but  in  so  grave  a  matter 
as  that  of  declaring  an  act  of  the  legislature  unconstitutional 
and  void,  I  wished  very  briefly  to  assign  the  reasons  which  had 
conducted  me  to  that  conclusion. 

There  cannot  be  a  very  great  number  of  private  roads  in  the 
state ;  ami  as  to  most  of  those  which  exist,  it  is  probable  that 
the  land  owners  have  in  one  form  or  another  consented  to  their 
use.  And  when  we  consider  how  liberally  public  roads  have 
already  been  opened,  and  how  easily  they  may  be  obtained 
when  wanted,  there  cannot  be  many  individuals  who  will  be 
affected  by  our  decision.  But  whatever  consequences  may  fol- 
low, I  am  of  opinion  that  a  private  road  cannot  be  laid  out  with- 
out the  consent  of  the  owner  of  the  land  over  which  it  passes. 

Co  WEN,  J.  concurred. 

NELSON,  Ch.  J.  dissenting.  I  cannot  concur  in  the  opinion 
that  the  statute  authorizing  the  laying  out  of  private  roads  is 
unconstitutional  and  void.  It  was  first  enacted  by  the  colonial 
legislature  in  1772,  and  has  been  in  force  in  the  colony  and 
state  ever  since — a  period  of  about  seventy  years.  (See  2 
Laws  c/JV.  F.  664,  §  19,  Van  Sch.  ed.;  id.  723,  §  2  ;  1  Laws 
ofN.  Y.  139,  141,  §  2,  13,  Jones  &  Var.  ed.;  2  R.  L.  of  1813, 
p.  276,  §  20;  1  R.  S.  517,  §  77  to  79.)  (a)  Its  constitution- 
ality has  never  before,  so  far  as  I  know,  been  doubted. 


(a;  And  see  3  Laws  of  N.  Y.  258,  $  17,  Wei.  ed.;  1  Laws  of  N.  Y.  595,  $  16, 
Kent      Rad.  ed. 


ALBANY,  JANUARY,  1843.  149 

Taylor  c.  Porter. 

Two  points  were  taken  in  argument,  either  of  which,  it 
was  supposed,  would  be  sufficient  to  require  us  to  adjudge  the 
act  in  question  invalid.  They  are  based  upon  the  provisions 
in  our  state  constitution,  which  declare,  1.  That  private  prop- 
erty shall  not  be  taken  for  public  use  without  just  compensa- 
tion ;  and  2.  That  no  person  shall  be  deprived  of  life,  liberty 
or  property,  withou^  due  process  of  law.  (Const.  o/"JV".  F. 
1821,  Art.  7,  §  7.)  The  old  constitution  of  1777  embraced 
neither  of  these  provisions,  though  the  latter  formed  a  part 
of  the  bill  of  rights  passed  in  January,  1787,  (1  R.  L.  of 
1813,  p.  47,  §  2,)  and  of  course  has  stood  fifty-six  years  co- 
temporary  with  the  statute  under  consideration.  Both  clauses 
are  found  in  the  amendments  to  the  constitution  of  the  United 
States,  (Art.  5  ;)  but  this  was  designed  as  a  limitation  of  the 
powers  of  the  national  government,  and  is  inapplicable  to  the 
legislation  of  the  states.  (Barron  \.  The  Mayor  fyc.  of  Balti- 
more, 7  Peters*  Rep.  243 ;  Livingston  v.  The  Mayor  fyc.  of 
New-York,  8  Wend.  85  ;  2  Cowen's  Rep.  818,  and  note  (6).) 

1.  It  is  said  the  laying  out  of  a  private  road  over  the  land 
of  another  is  an  appropriation  t)f  the  property  for  private  and 
not  for  public  purposes,  and  therefore  a  violation  of  the  spirit 
of  that  clause  in  the  constitution  which  forbids  the  taking  of  it 
for  public  use  without  making  just  compensation.  Whether 
the  security  of  the  citizen  against  such  arbitrary  legislation  as 
the  argument  contemplates,  depends  upon  this  clause  of  the 
constitution,  or  rests  upon  the  broader  and  more  solid  ground 
of  natural  right  never  delegated  by  the  people  to  the  Ian*  ma- 
king power,  it  is  unnecessary  now  to  enquire.  I  am  far  from 
disputing  the  existence  of  the  rule  itself.  Private  property 
annot  be  taken  for  strictly  private  purposes  without  the  con- 
sent of  the  owner,  whether  compensation  be  provided  •  or  not. 
But  I  deny  that  the  statute  authorizing  the  laying  out  of  pri- 
vate ways  is  at  all  in  conflict  with  the  general  rule.  The 
construction  of  roads  and  bridges  is  a  power  belonging  to  all 
governments,  in  the  exercise  of  which  every  citizen  or  subject 
is  deeply  concerned.  Works  of  this  nature  are  indispensable 


150  CASES  IN  THE  SUPREME  COURT. 

Taylor  ».  Porter. 

to  the  prosperity  of  a  country.  They  must  begin  with  its 
earliest  settlement  and  keep  pace  with  its  advancement  in  pop- 
ulation, in  commerce  and  social  enjoyment.  So  intimately 
are  they  interwoven  with  individual  enterprize  and  the  public 
welfare,  that  their  establishment  and  regulation  have  hitherto 
been  regarded  as  an  essential  branch  of  internal  police ;  the 
first  to  be  attended  to,  and  the  last  to  be  neglected.  Private 
roads  in  the  settlement  of  a  country  are  often  as  necessary  for 
the  accommodation  of  the  inhabitants,  as  those  of  a  public 
nature.  Thoroughfares  and  highways  cannot  be  made  to  trav- 
erse every  part  of  the  territory,  so  as  to  reach  the  dwell- 
ings of  all  who  need  their  use.  And  what  must  be  the  una- 
voidable result,  if  the  power  to  lay  out  private  roads  under 
public  authority  be  denied  1  We  have  in  this  state  about 
eight  hundred  towns,  and  I  doubt  not  there  may  be  an 
average  of  some  two  or  three  private  roads  in  each,  accommo- 
dating probably  four  thousand  or  more  inhabitants.  Is  not  the 
public  interest  concerned  that  they  shall  have  access  to  our  high- 
ways and  thoroughfares  1  If  it  be  refused  them,  how  are  they 
to  discharge  the  various  duties  enjoined  by  law,  or  enjoy  the 
privileges  which  the  law  was  intended  to  secure  to  them  ?  With 
what  propriety  can  they  be  called  on  to  work  upon  the  high 
ways,  to  serve  in  the  militia,  as  jurors,  or  as  public  officers, 
when  they  cannot  leave  their  possessions  without  committing  a 
trespass  ?  In  what  way  are  they  to  exercise  the  elective  fran- 
chise, or  avail  themselves  of  the  numerous  rights,  civil  and  po- 
litical, designed  by  government  as  the  common  property  of  all  ? 
A  denial  of  the  power  in  question  would  operate  like  a  sentence 
of  disfranchisement  and  outlawry  pronounced  against  them, 
though  chargeable  with  nothing  save  misfortune. 

The  considerations  thus  briefly  suggested,  and  others  of  a  like 
nature  which  might  be  adverted  to,  are  sufficient  to  show  that 
the  taking  of  private  property,  under  legislative  authority,  for 
the  purpose  of  being  used  as  a  road,  whether  to  accommodate  one 
man  or  more,  falls  strictly  within  the  right  of  eminent  domain  ; 
a  right  that  no  one  disputes,  and  under  which  the  government 


ALBANY,  JANUARY,  1848. 


Taylor  t>.  Porter. 


may  always  take  the  property  of  the  citizen  if  the  public  in- 
terest or  welfare  demand  it.  All  our  grants  to  individuals  and 
corporate  bodies  for  the  purpose  of  making  turnpikes,  bridges, 
rail-roads  and  canals,  for  establishing  ferries,  erecting  wharves 
and  basins,  and  draining  swamps,  marshes  &c.,  stand  upon  this 
principle.  (Commonwealth  v.  Breed,  4  Pick.  460,  463  ;  Cot- 
rill  v  Myrick,  3  Faxrf.  222,  233  ;  Dyer  v.  Tuscaloosa  Bridge 
Company,  2  Porter's  Rep.  296,  303  ;  Boston  Water  Power  Co.  v. 
Boston  <$•  Wor.  Rail  Road  Co.,  23  Pick.  394,5  ;  2  Kent's  Com. 
340,  42/4  ed.  and  the  notes.)  And  I  assent  to  the  proposition 
laid  down  by  Chancellor  Walworth  in  Beekman  v.  The  Sara- 
toga 4*  Schenectady  Rail  Road  Co.,  (3  Paige,  73,)  viz.  that 
"  if  the  public  interest  can  be  in  any  way  promoted  by  the  ta- 
king of  private  property,  it  must  rest  with  the  wisdom  of  the 
legislature  to  determine  whether  the  benefit  to  the  public  will 
be  of  sufficient  importance  to  render  it  expedient  for  them  to 
exercise  the  right  of  eminent  domain."  (See  also  Varick  v. 
Smith,  5  Paige,  137  ;  Commonwealth  v.  Breed,  4  Pick.  463, 
per  Morton,  J.-}  Boston  Water  Power  Co.  v.  Boston  fy  Wor. 
Rail  Road  Co.,  23  Pick.  394,  5,  per  Shaw,  Ch.  J.;  4  Kent's 
Com.  340,  ±th  ed.,  note.)  In  Pennsylvania  it  has  been  ex- 
pressly decided,  notwithstanding  a  clause  in  their  constitution 
similar  to  the  one  in  ours,  that  the  legislature  may  authorize 
the  laying  out  of  private  ways  for  the  purpose  of  enabling 
citizens  to  reach  the  public  thoroughfares.  (Harvey  v.  Thomas, 
10  Watts'  Rep.  63.)  (6) 

2.  As  to  the  clause  in  the  constitution  declaring  that  no  per- 
son shall  be  deprived  of  his  property  without  due  process  of 
law,  (Art.  7,  $  7,)  it  is  sufficient  to  refer  to  the  authorities  es- 
tablishing that  this  provision  has  no  necessary  application  where 


(6)  The  provision  in  the  constitution  of  Pennsylvania  is  thus :  "  Nor  shall  any 
man's  property  be  taken  or  applied  to  public  use,  without  the  consent  of  his  represen- 
tatives, and  without  just  compensation  being  made."  (Art.  9,  §  10.)  It  a!«o  j  ro. 
vides,  that  no  person  shall  "  be  deprived  of  his  life,  liberty  or  property,  un!f«s  hy 
the  judgment  of  his  peers,  or  the  law  of  the  land."  (Art.  9,  §  9.) 


152       CASES  IN  THE  SUPREME  COURT. 

Taylor  v.  Porter. 

the  government,  in  the  exercise  of  the  right  of  eminent  do- 
main, authorizes  the  taking  of  private  property  for  public  pur- 
poses. (Livingston  v.  The  Mayor  fyc.  of  New-York,  8  Wend. 
85 ;  Bloodgood  v.  The  Mohawk  fy  Hudson  Rail  Road  Co.,  18 
id.  1 ;  Beekman  v.  The  Saratoga  fy  Schenectady  Rail  Road  Co., 
3  Paige,  45  ;  Varick  v.  Smith,  5  id.  137.) 

3.  There  is  another  view  of  this  question  which  appears  to 
me  decisive.  I  have  already  stated  that  the  statute  for  laying 
out  private  roads  was  passed  in  1772,  and  has  been  in  full  and 
active  operation  ever  since.  The  old  constitution  was  adopted 
in  April,  1777,  and,  among  other  things,  ordained,  "  that  such 
parts  of  the  common  law  of  England  &c.,  and  of  the  acts  of 
the  legislature  of  the  colony  of  New-  York,  as  together  did  form 
the  law  of  the  said  colony  on  the  19th  of  April,  1775,  shall  be 
and  continue  the  law  of  this  state,"  subject  to  modification  by 
the  legislature.  An  exception  is  then  made  in  repect  to  all  laws 
repugnant  to  the  Constitution.  (Const.  o/'1777,  §  35.)  As  there 
is  nothing  to  be  found,  however,  in  any  of  its  provisions  at  va- 
riance with  the  right  of  authorizing  the  laying  out  of  private 
roads,  the  section  quoted  amounts  to  a  direct  constitutional  af- 
firmance of  the  act  of  1772.  Our  present  constitution,  which 
was  adopted  in  1821,  ordained  that  "  such  parts  of  the  common 
law,  &c.  and  such  acts  of  the  legislature  as  are  now  in  force, 
shall  be  and  continue  the  law  of  this  state,"  subject  to  altera- 
tion by  the  legislature ;  and  then  an  exception  is  added  similar 
to  the  one  contained  in  the  former  constitution.  (Const,  of 
1821,  Art.  7,  §  13.)  Now  I  find  no  direct  assertion  of  any 
principle  in  the  new  constitution  to  which  the  statute  in  ques- 
tion can  be  said  to  be  repugnant.  The  clause  forbidding  pri- 
vate property  to  be  taken  for  public  use  without  just  compen- 
sation does  not  reach  it ;  or  if  it  does,  the  condition  has  been 
complied  with,  as  the  statute  expressly  provides  for  compensa- 
tion. Even  were  it  conceded  that  the  statute  is  in  violation  of 
natural  right,  still  the  people  might  adopt  it,  if  they  thought  prop- 
er, as  a  part  of  the  fundamental  law  of  the  state  ;  and  I  think 
they  have  done  so.  The  only  other  clause  of  the  constitution 


ALBANY,  JANUARY,  1843.  153 

Taylor  c.  Porter. 

to  which  the  statute  can  be  said  to  be  repugnant,  is  the  one 
which  forbids  that  any  citizen  shall  be  deprived  of  his  property 
without  due  process  of  law.  This,  we  have  seen,  was  contain- 
ed in  the  bill  of  rights  passed  in  January,  1787,  and  of  course 
stood  upon  the  statute  book  along  with  the  act  in  question  for 
about  thirty-five  years  preceding  the  adoption  of  the  new  con- 
stitution, and  has  since  existed  in  the  form  of  a  constitutional 
provision  for  about  twenty-two  years  ;  and  during  all  that  time, 
neither  lawyer  nor  layman,  legislator  nor  judge,  has  ventured 
to  suggest  there  was  a  discrepancy  between  the  fundamental 
law  and  the  statute.  As  the  legislative,  professional  and  judi- 
cial intelligence  of  the  state  for  the  last  half  century  has  fail- 
ed to  discover  any  such  discrepancy,  and  the  people  have  acted 
under  the  statute  for  so  long  a  period  without  a  doubt  of  its 
validity  being  raised,  this  practical  approval  of  its  provisions, 
as  well  as  of  the  constitution,  should  be  regarded  as  decisive  in 
favor  of  the  interpretation  which  harmonizes  both.  There  can 
be  no  doubt,  the  universal  opinion  heretofore  has  been,  that 
the  law  authorizing  the  laying  out  of  private  roads  stands  upon 
the  same  principle  with  the  law  in  respect  to  highways  ;  and 
that  all  these  improvements,  if  not  equally  necessary,  are  at 
least  so  much  a  matter  of  public  concern  as  to  justify  the  full 
exercise  of  the  right  of  eminent  domain. 

I  will  add,  if  the  government  of  this  state  does  not  possess 
the  power  of  authorizing  the  laying  out  of  private  roads,  it  is 
probably  the  only  state  government  in  the  union  to  which  the 
power  has  been  denied  j  and  I  may  probably  say,  the  only 
government  in  the  world. 

Judgment  for  the  plaintiff. 


VOL.  IV.  20 


154       CASES  IN  THE  SUPREME  COURT. 


Brown  v.  Stebbins. 


BROWN  vs.  STEBBINS  &  THURBER. 

A  covenant  was  entered  into  between  S.  and  T.  of  the  one  part  and  B.  of  the  oth- 
er, wherein  S.,  who  owned  certain  lands,  agreed  to  sell  them  to  the  beat  ad. 
vantage  he  could  obtain  for  them  in  cash  between  the  date  of  the  covenant  and 
the  first  of  October  then  next,  and  pay  the  proceeds  to  B.,  within  the  time  men. 
tioned,  to  apply  on  a  mortgage  executed  to  him  by  S. ;  after  which  followed 
tnis  clause—"  Now  therefore  we  agree  that  the  said  moneys  so  received  as  afore- 
said shall  be  paid  to  said  B.  &c.,  and  that  said  S.  shall  use  all  necessary  care 
and  diligence  in  the  sale  of  said  lots."  HELD,  an  undertaking  by  S.  and  T. 
that,  among  other  things,  S.  should  use  all  necessary  care  and  diligence  to  make 
sales  within  the  time  specified,  and  that  he  should  use  the  like  care  and  dili- 
gence to  sell  to  the  best  advantage  or  for  the  best  price  which  could  be  obtained 
within  the  same  period. 

Where,  in  an  action  on  such  covenant,  one  of  the  breaches  assigned  was,  that  "  the 
defendants  or  either  of  them  did  not  pay  the  proceeds  of  the  sale  to  the  plain- 
tiff," without  alleging  that  any  sale  had  been  made  ;  held  bad  on  special  de- 
murrer. 

So  of  a  breach  that  "  S.  aid  not  zed  and  dispose  oj  the  lands  to  the  best  advantage 
or  for  the  most  he  could  obtain,"  without  showing  whether  the  plaintiff  meant  to 
go  for  improperly  omitting  to  sell  at  all,  or  for  selling  at  too  low  a  price. 

Otherwise,  of  a  breach  following  and  negating  the  words  of  the  covenant ;  e.  g. 
that  S.  did  not  use  all  necessary  care  and  diligence  in  the  sale  of  the  lands. 

As  a  general  rule,  it  is  sufficient,  in  assigning  a  breach,  to  follow  and  negative  the 
words  of  the  covenant. 

An  exception  to  the  rule  obtains  where  this  mode  of  pleading  does  not  necessarily 
amount  to  a  breach.  Per  BRONSON,  J. 

When  the  pleader  undertakes  to  assign  a  breach  coming  within  the  substance, 
effect  or  intent  of  the  covenant,  he  is  held  to  a  more  strict  rule  than  when  he 
follows  either  negatively  or  affirmatively,  as  the  case  may  be,  the  words  of  the 
contract.  Per  BRONSON,  J. 

Where  a  declaration  in  covenant  assigns  several  distinct  breaches,  some  of  which 
are  good,  but  others  bad,  and  the  defendant  interposes  a  demurrer  going  to  the 
whole  declaration,  the  plaintiff  will  be  entitled  to  judgment  on  the  demurrer. 

The  defendant,  under  such  circumstances,  should  plead  to  the  breaches  which  are 
well  assigned,  and  demur  to  the  others. 

COVENANT,  upon  the  following  agreement  under  the  hands 
and  seals  of  the  defendants  :  "  This  agreement  made  this  27th 
day  of  January,  in  the  year  one  thousand  eight  hundred  and 
thirty-seven,  between  Jared  N.  Stebbins  and  Philip  Thurberof 


ALBANY,  JANUARY,  1843.  155 


Brown  v.  Stebbim. 


the  one  part,  and  William  S.  Brown  of  the  other  part :  Where- 
as the  said  Jared  N.  Stebbins  has  purchased  a  farm  of  the  said 
William,  and  has  given  a  mortgage  on  said  farm  for  the  pur- 
chase money  thereof,  and  for  the  purpose  of  further  securing 
the  said  purchase  money  the  said  Jared  has  a  deed  of  the  fol- 
lowing lots  of  land  situate  in  Bangor,  in  the  state  of  Maine, 
[describing  them  by  numbers,]  the  said  Jared  N.  agrees 
to  sell  and  dispose  of  said  lots  of  land  to  the  best  advantage 
that  he  can  obtain  for  the  same  between  this  time  and  the  first 
day  of  October  next  for  cash,  and  pay  the  proceeds  of  said  sales 
(the  ordinary  costs  and  expenses  of  said  sales  excepted,)  to  said 
William  S.  Brown  by  the  first  day  of  October  next,  which  said 
proceeds  are  to  be  applied  towards  the  payment  of  the  afore- 
said mortgage.  Now  therefore  we  agree  that  the  said  moneys 
so  received  as  aforesaid  shall  be  paid  to  said  Brown,  or  s-o 
much  thereof  as  shall  pay  off  and  satisfy  said  mortgage,  if  there 
shall  be  enough  for  that  purpose,  and  that  said  Stebbins  shall 
use  all  necessary  care  and  diligence  in  the  sale  of  said  lots. 
Given  under  our  hands  and  seals  the  day  and  year  above 
written." 

After  setting  out  the  covenant  in  hac  verba,  the  pleader  pro- 
ceeded in  the  first  count  as  follows  :  "  And  the  said  plaintiff  in 
fact  says  that  said  Stebbins  did  not  sell  and  dispose  of  said  lots 
to  the  best  advantage,  or  for  the  most  he  could  obtain  for 
them  ;  nor  did  said  Stebbins  use  necessary  care  and  diligence 
in  the  sale  of  said  lots,  but  on  the  contrary  used  no  care  or  dili- 
gence in  the  sale  thereof.  And  the  said  plaintiff  avers  that  he 
has  always  been  ready  to  receive  the  avails  of  the  said  lots  &c.  ; 
yet  the  said  defendants  have  not,  nor  has  either  of  them  paid 
said  plaintiff  any  sum  or  sums  of  money  whatever,  or  any  other 
thing  arising  from  said  lots,  to  the  great  damage  of  the  said 
plaintiff." 

In  the  second  count,  after  setting  out  the  contract,  the 
breaches  were,  that  Stebbins  did  not  sell  and  dispose  of  the 
lots  to  the  best  advantage  that  he  could  obtain  for  the  same  j 
that  the  defendants  or  either  of  them  did  not  pay  the  proceeds 


CASES  IN  THE  SUPREME  COURT. 


Brown  v.  Stebbins. 


of  the  sale  of  the  lots,  or  any  sum  or  sums  of  money  whatever, 
to  the  plaintiff,  to  be  applied  towards  the  payment  of  the  mort- 
gage •  and  that  Stebbins  did  not  use  all  necessary  care  and  dili- 
gence in  the  sale  of  said  lots.  The  defendants  demurred  to 
the  declaration,  assigning  special  causes  and  the  plaintiff  joined 
in  demurrer. 

H.  Gay,  for  the  defendants. 
S.  Boughton,  for  the  plaintiff. 

By  the  Court,  BRONSON,  J.  The  contract  with  its  recitals 
amounts  to  this  :  The  defendant  Stebbins  had  mortgaged  a 
farm  to  the  plaintiff,  and  the  plaintiff  wished  to  obtain  further 
security  for  the  payment  of  the  mortgage  debt.  Stebbins 
owned  several  lots  of  land  at  Bangor,  from  the  sale  of  which 
the  whole  or  some  part  of  the  debt  might  be  paid.  He  cove- 
nanted with  the  plaintiff  that  he  would  sell  the  lots  "  to  the 
best  advantage" — in  other  words,  for  the  best  price — he  could 
obtain  for  the  same  in  cash  between  the  date  of  the  agreement 
and  the  first  day  of  October  then  next,  and  that  he  would  "  pay 
the  proceeds  of  said  sales"  (deducting  expenses)  to  the  plain- 
tiff by  the  first  day  of  October,  to  be  applied  on  the  mortgage. 
Thus  far  we  have  nothing  but  the  several  covenant  of  Stebbins. 
But  Thurber  now  comes  in  as  a  surety,  and  then  we  have  the 
joint  covenant  of  both  defendants  "  that  the  said  moneys  so 
received  as  aforesaid  shall  be  paid  to  said  Brown."  This  only 
bound  Thurber  to  see  that  the  proceeds  were  paid  over  in  case 
sales  should  be  made.  The  plaintiff  wanted  something  more. 
A  further  joint  covenant  was  therefore  added,  "that  said  Steb- 
bins shall  use  all  necessary  care  and  diligence  in  the  sale  of 
said  lots."  On  a  fair  construction  of  this  covenant,  I  think  the 
defendants  undertook  for  two  things — firs  that  Stebbins  should 
use  all  necessary  care  and  diligence  to  male  sales  within  the 
specified  time  ;  and  second,  that  he  should  use  such  care  and 
diligence  to  sell  the  lots  "to  the  best  advantage,"  or  for  tht 


ALBANY,  JANUARY,  1843.  157 

Brown  r.  Stebbins. 

best  price  that  could  be  obtained  for  the  same  within  that 
time. 

The  breaches  assigned  are  substantially  the  same  in  both 
counts.  One  breach  is,  that  the  defendants,  or  either  of  them, 
did  not  pay  the  proceeds  of  the  sale  of  the  lots  to  the  plaintiff. 
This  is  bad.  It  can  only  be  made  out  by  argument  and  infer- 
ence, if  at  all,  that  there  were  any  sales  or  proceeds,  and  the 
demurrer  is  special.  It  does  not  follow  from  the  fact  that  no 
proceeds  were  paid  over,  that  there  were  any  proceeds  to  be 
paid  over.  The  fact  that  sales  were  made  and  moneys  receiv- 
ed by  Stebbins  should  have  been  directly  alleged.  (Serra  v. 
Wright ,  6  Taunt,  45.)  If  there  were  no  sales,  it  is  impossible 
that  there  should  be  a  breach  of  this  covenant.  Another 
breach  to  which  objection  has  been  taken  by  special  demurrer 
is,  that  "  Stebbins  did  not  sell  and  dispose  of  the  lots  to  the  best 
advantage,  or  for  the  most  he  could  obtain  for  them."  Does 
the  pleader  mean  that  Stebbins  did  not  sell  at  all,  or  that  he 
did  not  sell  for  the  best  price  which  could  have  been  obtained  1 
It  is  impossible  to  say  which.  If  there  was  no  sale,  that  fact 
should  have  been  directly  alleged  ;  and  if  the  complaint  be  that 
Stebbins  sold,  but  did  not  get  the  best  price  which  could  have 
been  obtained,  the  pleader  should  have  said  so  in  explicit 
terms.  Without  such  an  averment  the  defendants  can  neither 
know  how  to  plead,  nor  what  evidence  they  may  expect  to 
meet  on  the  trial. 

The  breach  is  not  assigned  in  the  words  of  the  joint  cove- 
nants, or  either  of  them.  And  when  the  pleader  undertakes 
to  assign  a  breach  coming  within  the  substance,  effect  or  in- 
tent of  the  covenant,  he  is  held  to  a  more  strict  rule  than  when 
he  follows,  either  negatively  or  affirmatively,  as  the  case  may 
be, the  words  of  the  contract.  (Com.  Dig.  Pleader,  (C.  47).) 

The  remaining  breach  is,  that  Stebbins  did  not  use  all  neces- 
sary care  and  diligence  in  the  sale  of  the  lots.  Here  the  plead- 
er has  followed  and  negatived  the  words  of  one  of  the  joint 
covenants,  and  as  a  general  rule  that  is  sufficient.  (Hughes  v. 
Smith,  5.  John.  168  ;  Smith  v.  Jansen,  8  John.  Ill  ;  Kar- 


158  CASES  IN  THE  SUPREME  COURT. 

Birdseye  t>.  Ray. 

thans  v.  Owngs,2  Gill  <$•  John.  430  ;  McGeehan  v.  Mc.Laugh- 
lin,  1  Hall,  33  ;  Com.  Dig.  Pleader  (C.  45)  ;  1  Chit.  PI.  365, 
6,  ed.  of  '37.)  There  is  an  exception  to  the  rule,  where  this 
mode  of  pleading  does  not  necessarily  amount  to  a  breach  of 
the  covenant.  (Julliand  v.  Burgott,  1 1  John.  6  ;  Gould  v. 
Allen,  1  Wend.  182;  Thomas  v.  FawJVm,  4  JFewd.  549.)  It 
is  undoubtedly  true  that  the  defendants  may  suffer  some  incon- 
venience for  the  want  of  a  more  specific  breach.  They  are  not 
advised  whether  the  plaintiff  intends  to  go  for  a  want  of  care 
and  diligence  to  make  sales,  or  for  not  selling  at  the  best  price 
which  might  have  been  obtained,  or  for  both.  But  still  the 
rule  is  well  settled  that  the  pleader  may  follow  the  words  of 
the  covenant,  either  negatively  or  affirmatively,  as  the  case  may 
be,  where  that  will  necessarily  show  the  contract  has  been 
broken  ;  and  such  is  the  case  here.  If  Stebbins  has  not  used  all 
necessary  care  and  diligence  in  the  sale  of  the  lots,  the  defen- 
dants have  not  kept  their  covenant. 

As  this  breach  is  well  assigned,  and  the  demurrer  goes  to  the 
whole  declaration,  the  plaintiff  is  entitled  to  judgment.  The 
defendants  should  have  pleaded  to  the  breach  in  each  count 
which  is  well  assigned,  and  demurred  to  the  others. 

Judgment  for  the  plaintiff. 


BIRDSEYE  vs.  RAT. 

Where  a  sheriff  seizes  goods  owned  by  two  persons  as  tenants  in  common,  upon  a 
fi.  fa.  against  one  of  them,  and  afterwards  the  latter  purchases  the  share  of  his 
co-tenant,  the  sheriff  may  advertise  and  sell  the  entire  interest  or  property  in  the 
goods  without  making  a  new  levy. 

Personal  property  transferred  by  a  defendant  in  a  fi.  fa.  before  actual  levy,  though 
after  the  writ  issued,  is  not  liable  to  seizure  under  the  writ,  provided  the  transferee 
be  a  bona  fide  purchaser  for  a  valuable  consideration,  and  took  the  property  with- 
out notice  of  the  writ. 

A  mortgagee,  though  for  a  pre-existing  debt,  ii  a  purchaser  pro  tanto  within  the 
above  rule. 


ALBANY,  JANUARY,  1843.  159 

Birdscye  t>.  Ray. 

ON  error  from  the  Onondaga  common  pleas.  Ray  sued  Birds- 
eye  before  a  justice,  in  trover,  for  a  quantity  of  wheat,  and  re- 
covered judgment  for  one  hundred  dollars,  besides  costs  ;  where- 
upon Birdseye  appealed  to  the  common  pleas.  On  the  trial 
in  the  latter  court,  the  facts  proved  were  as  follows  :  In  the 
fall  of  1840,  one  Houghtailing  sowed  about  fifteen  acres  of 
wheat  upon  shares,  on  a  farm  belonging  to  one  Philips. 
On  the  19th  of  September,  shortly  after  Houghtailing  had 
finished  sowing  the  wheat,  it  was  levied  upon  by  the  sheriff 
under  &Ji.  fa.  against  Houghtailing  in  favor  of  one  Vinal. 
The^.  fa.  was  received  by  the  sheriff  on  the  21st  of  July, 
1840,  and  was  returnable  on  the  3d  Monday  of  October  follow- 
ing. The  sheriff  seized  the  whole  of  the  wheat,  not  knowing  at 
the  time  that  Philips  owned  an  undivided  moiety  of  it,  but  suppos- 
ing the  entire  interest  belonged  to  Houghtailing.  Some  months 
before  this,  Ray  had  become  responsible  with  Houghtailing  on 
a  note  given  for  the  benefit  of  the  latter,  under  an  express 
promise  that  he  (Ray)  should  be  secured.  The  note  was  paya- 
ble on  the  1st  of  January,  1841.  On  the  16th  of  September, 
1840,  Houghtailing  turned  out  his  moiety  of  the  wheat  to  Ray, 
as  security,  telling  Ray  *,nat  he  would  be  under  the  necessity 
of  taking  up  the  note.  No  writings  were  entered  into,  and 
there  was  some  dispute  on  the  trial  whether  this  transaction 
amounted  to  an  absolute  sale  of  the  wheat  to  Ray,  or  a  mort- 
gage. The  evidence  was  quite  clear,  however,  that  a  mere 
mortgage,  or  perhaps  a  pledge,  was  intended*.  On  the  3d  of 
October,  1840,  Houghtailiug  purchased  Philips'  moiety  of  the 
wheat ;  and,  on  the  5th  of  the  same  month,  he  (Houghtailing) 
turned  out  this  also  to  Ray  in  the  same  manner  as  he  had  done 
the  other,  and  for  the  same  purpose.  Afterwards  the  sheriff, 
without  having  made  any  new  levy,  advertised  and  sold  the 
whole  property  in  the  wheat  under  the ^i. /a.,  and  it  was  bid  in 
by  one  Alexander.  Both  the  levy  and  sale  were  made  under 
directions  from  the  defendant  in  the  court  below,  Mr.  Birdseye. 
The  evidence  was  contradictory  as  to  whether  or  not  Ray  had 


160  CASES  IN  THE  SUPREME  COURT. 

Birdseye  c.  Ray. 

knowledge  of  the  fi.  fa.  when  the  wheat  was  turned  out  to 
him. 

The  counsel  for  the  defendant  requested  the  court  below  to 
instruct  the  jury  that  the  levy  upon  the  wheat  by  the  sheriff 
on  the' 19th  of  September,  operated  as  a  seizure  of  the  entirety 
for  the  purposes  of  the  sale,  and  that.no  new  levy  was  necessa- 
ry. The  court  were  also  requested  to  instruct  the  jury  that 
Ray,  having  taken  the  wheat  as  security  for  a  precedent  debt, 
and  being  a  mere  mortgagee,  was  not  a  boua  fide  purchaser 
within  the  act,  (2  R.  S.  366,  §  17,)  whether  he  had  notice  of 
ihe  fi.  fa.  or  not.  The  court  refused  so  to  instruct  the  jury, 
but  charged  the  contrary  as  to  both  points.  The  defendant 
excepted.  Verdict  and  judgment  for  the  plaintiff,  $120,  being 
the  value  of  the  entire  interest  in  the  wheat.  The  defendant 
sued  out  a  writof  error. 

V.  Birdseye,  plaintiff  in  error,  in  pro.  per. 
H.  P.  Winsor,  for  the  defendant  in  error. 

By  the  Court,  NELSON,  Ch.  J.  It  is  well  settled  that  where 
a  sheriff  has  seized  goods  under,  one  execution,  and  then  anoth- 
er execution  against  the  same  defendant  comes  to  his  hands, 
the  seizure  under  the  first  enures  by  way  of  constructive  levy 
for  the  benefit  of  the  second.  (Cresson  v.  Stout,  17  John.  Rep. 
116.)  In  Russell  v.  Gibbs,  (5  Cowen's  Rep.  390,)  the  doc- 
trine was  applied,  though  after  the  first  levy  and  before  the 
receipt  of  the  second  execution  the  goods  were  removed  out 
of  the  state,  and  remained  there  until  the  return  day  of  the 
second  execution  had  passed.  The  principle  is  this  :  The 
object  as  well  as  the  effect  of  an  actual  levy  is,  to  bring  the 
goods  into  the  possession  and  under  the  control  of  the  sheriff, 
for  the  double  purpose  of  safe-keeping,  and  to  enable  him,  by  a 
sale,  to  apply  the  proceeds  in  payment  of  the  debt.  After 
seizure  they  are  in  the  custody  of  the  Jaw,  or  of  one  of  its  min- 
isters, until  a  sale  and  delivery  to  the  purchaser  ;  and  an  actual 


ALBANY,  JANUARY,  1848.  161 

Birdaeye  t>.  Raj. 

levy  under  the  second  execution  would  therefore  be  but  an  idle 
formality,  (a) 

It  is  also  well  settled  that,  on  an  execution  against  one  of 
two  partners,  joint  tenants  or  tenants  in  common,  the  sheriff 
in  levying  upon  their  joint  effects  seizes,  not  the  mere  moiety 
or  share  of  the  defendant  in  the  execution,  but  the  whole  of 
the  common  interest — the  corpus  of  the  joint  estate — thus 
bringing  it  under  his  exclusive  dominion  and  control.  (Phil- 
lips v.  Cook,  24  Wend.  389.)  The  custody  of  the  sheriff  ap- 
pears to  be  as  effectual  for  all  the  purposes  of  a  sale,  as  in  the 
case  of  a  seizure  of  separate  property.  He  acquires  such  a 
special  property  in  the  goods,  that  he  can  maintain  trespass  or 
trover  for  them  against  all  persons,  save,  perhaps,  the  co-part- 
ner or  co-tenant.  (Gilb.  on  Ex.  15  ;  Colly,  on  Part.  474,  ed. 
of  1839  ;  Watson  on  Sheriffs,  182,  191.) 

It  seems  to  me,  therefore,  that  the  ground  for  applying  the 
principle  of  a  constructive  levy  as  it  respects  the  wheat  which 
Houghtailing  purchased  after  the  seizure  by  the  sheriff,  is 
much  stronger  than  in  the  familiar  cases  mentioned.  There,  it 
results  from  a  prior  seizure  of  the  goods  by  virtue  of  an  inde- 
pendent execution ;  while  here,  we  are  only  called  upon  to 
give  effect  to  a  seizure  made  under  the  same  writ.  True,  as  a 
general  rule,  where  the  sheriff  seizes  goods  owned  jointly,  on 
an  execution  against  one  of  two  owners,  he  can  sell  no  more 
than  the  debtor's  share. (6)  And  why  1  Because  the  goods, 
though  brought  under  the  sheriff's  control  in  virtue  of  the  levy, 
are  held  by  him  subject  to  the  interest  of  the  other  owner, 
whose  share  cannot  be  applied  in  payment  of  a  separate  de- 
mand. But  when  such  share  is  released  to  the  defendant  in 
the  execution,  as  it  was  in  the  present  case,  there  remains  no 
longer  any  reason  for  a  limited  or  qualified  sale,  and  it  may,  I 
think,  be  made  co-extensive  with  the  levy.  Indeed  it  is  doubt- 


to)  See  Van  Winkle  v.  VdaU,  (1  HOI,  559.) 

(6)  See  Waddell  v.  Cook,  (2  Hill,  47,  and  note  (a).) 

VOL.  IV.  21 


162  CASES  IN  THE  SUPREME  COURT. 

Birdseye  v.  Ray. 

ful  if  a  sale  of  an  undivided  interest,  after  the  extinguishment 
of  the  shares,  would  be  upheld. 

This  view  is  confirmed  also  by  the  case  of  Bachurst  v.  Clink- 
ard,  (1  Show.  173.)  There  it  was  held  that  if  the  good  of 
two  partners  be  taken  in  execution  against  one,  and  an  ex  e  cu- 
tion  against  the  other  partner  be  subsequently  received  by  the 
sheriff,  he  is  bound  to  hold  them  seized,  one  moiety  for  the 
execution  against  one  partner,  and  the  other  moiety  for  the  exe- 
cution against  the  other  partner  ;  and  if  he  return  the  second 
writ  nulla  bona,  in  such  case,  he  renders  himself  liable  for  a 
false  return.  ( Watson  on  Sheriffs,  182,  3  ;  Colly,  on  Part. 
474  ;  Heydon  v.  Heydon,  1  Salk.  392.) 

There  may  be  some  doubt  upon  the  remaining  branch  of  the 
case,  whether  the  transaction  between  Houghtailing  and  Ray, 
in  respect  to  the  turning  out  of  the  wheat,  did  not  constitute  a 
pledge  instead  of  a  mortgage  ;  but  as  no  point  of  that  kind 
was  raised  on  the  argument,  we  will  assume  it  to  be  a  mort- 
gage. The  question  then  is,  upon  Ray's  right  to  be  treated  as 
a  bonajide  purchaser,  within  the  meaning  of  2  R.  S.  366,  §  17. 
This  section  is  as  follows  :  "  The  title  of  any  purchaser  in  good 
faith,  of  any  goods  or  chattels,  acquired  prior  to  the  actual 
levy  of  any  execution,  without  notice  of  such  execution  being 
issued,  shall  not  be  divested  by  the  fact  that  such  execution 
had  been  delivered  to  an  officer  to  be  executed  before  such 
purchase  was  made."  At  common  law  the  execution  bound 
the  goods  from  the  teste,  even  as  against  a  sale  to  a  bona  Jide 
purchaser  ;  (Anonymous ,  Cro.  Eliz.  174  ;  see  also  Dudley  v . 
Halsey,  Cro.  Car.  148  ;)  but  the  statute  29  Car.  2,  ch.  3,  §  16, 
qualified  the  rule,  so  as  to  render  such  a  sale  good  if  made  at 
any  time  before  the  delivery  of  the  writ  to  the  sheriff.  Our 
statute  has  extended  the  qualification  by  giving  validity  to 
sales  made  before  actual  levy,  without  notice  of  the  execution. 
(Butler  v.  Maynard,  11  Wend.  548.)  These  enactments,  and 
the  statutory  provisions  against  sales  made  to  "hinder,  delay, 
or  defraud  creditors"  &c.,  (Stat.  13  Eliz.,  ch.  5,  2  R.  S.  1 36, 
§  5,  id.  137,  §  1,)  are  in  pari  materia,  and  should  be  construed 


ALBANY,  JANUARY,  1843. 


Birdsoye  v.  Ray. 


together.  Now  it  has  been  repeatedly  held,  notwithstanding 
the  statutes  last  mentioned,  that  a  debtor,  though  in  failing  cir- 
cumstances, has  the  right  to  give  preference  to  a  creditor  ;  and 
that  he  may  pay  or  secure  him  by  the  delivery  of  goods,  pend- 
ing a  suit  and  before  any  lien  attaches,  provided  the  delivery 
be  accompanied  with  a  complete  change  of  possession  and  there 
be  no  actual  fraud.  (Holbird  v.  Anderson,  5  T.  R.  235  ;  Pick- 
stock  v.  Lyster,  3  Maule  fy  Selw.  371  j  Grover  v.  Wakeman, 
11  Wend.  187.)  It  follows,  therefore,  that  a  bona  fide  pre- 
existing debt  constitutes  a  valuable  consideration  ;  and  there 
can  be  no  doubt  that  Ray,  though  a  mortgagee,  must  be  deem- 
ed a  purchaser  pro  tanto  within  the  statute  under  consideration. 
{Chapman  v.  Emery,  Cowp.  278  ;  White  v.  Hussey,  Prec.  in 
Ch.  13  j  Coote  on  Mort.  355.)  The  claim  of  superior  equity 
arising  out  of  the  judgment  over  the  simple  contract  creditor, 
urged  in  argument  by  the  plaintiff  in  error,  was  also  urged  in 
Holbird  v.  Anderson;  but  the  court  answered,  that  all  debts 
were  of  equal  degree  inter  vivos,  and,  of  course,  equally  con- 
scientious and  due  to  the  creditor.  The  principle  of  Codding- 
ton  v.  Bay,  (20  John.  Rep.  637,)  and  of  that  class  of  cases, 
has  no  application  to  the  present.  Assuming  what  the  jury 
have  found,  viz.  that  the  debt  of  Ray,  and  the  transaction  be- 
tween him  and  Houghtailing  as  to  the  turning  out  of  the  wheat, 
were  bona  fide,  the  equities  of  the  respective  parties  here  are 
balanced  j  and  the  one  first  acquiring  the  legal  right  is,  in 
such  cases,  to  be  preferred. 

Judgment  reversed. 


164  CASES  IN  THE  SUPREME  COURT. 

Rockwell  v.  Rockwell. 


ROCKWELL  and  others,  ex'rs  &c.  vs.  ROCKWELL. 

In  declaring  upon  a  note  for  a  given  sum  payable  in  specific  articles  at  a  certain 
time  and  place,  it  is  sufficient  for  the  plaintiff  to  aver  that,  by  reason  of  the 
making  of  the  note,  the  defendant  became  liable  to  pay,  but  had  not  paid  &c., 
without  alleging  in  terms  a  non-delivery  of  the  articles. 

DEMURRER  to  declaration  on  a  chattel  note.  The  declara- 
tion was  as  follows :  Betsey  Rockwell,  George  T.  Rockwell 
and  Jeremy  Rockwell,  executors  &c.  of  Jeremy  Rockwell  de- 
ceased, plaintiffs  in  this  suit,  by  &c.,  complain  of  Joseph  Rock- 
well, defendant  in  this  suit  j  for  that  whereas  the  said  defen- 
dant, on  &c.,  at  &c.,  made  his  certain  chattel  note  in  writing 
bearing  date  &c.,  and  then  and  there  delivered  the  said  note 
to  the  said  testator  in  his  lifetime,  and  thereby  then  and  there 
by  the  first  day  of  June  (then)  next,  he,  the  said  defendant, 
promised  to  pay  to  the  said  testator  sixty-five  dollars  in  good 
merchantable  hemlock  saw-logs,  to  be  delivered  at  Abner 
Wait's  mill,  in  the  town  of  Hadley,  with  interest,  value  re- 
ceived, at  thirty  dollars  per  hundred.  By  reason  whereof  he, 
the  said  defendant,  became  liable  to  pay  to  the  said  testator  the 
said  sixty-five  dollars  in  the  said  note  mentioned  and  the  inter- 
est thereof  according  to  the  tenor  and  effect  of  the  said  note. 
And  being  so  liable  &c.  [concluding  with  the  usual  averment 
of  a  promise  to  pay,  and  refusal.]  General  demurrer  and 
joinder , 

S.  J.  Coweri)  for  the  defendant,  said  no  sufficient  breach  of 
the  agreement  sued  upon  was  alleged  in  the  declaration.  He 
insisted  that  the  note  was,  in  legal  effect,  a  contract  in  the 
disjunctive,  importing  an  obligation  on  the  part  of  the  defen- 
dant to  deliver  the  logs  or  pay  the  money ;  and  that  the  decla- 
ration should  therefore  have  averred  the  defendant's  neglect  to 
deliver,  according  to  the  terms  of  the  contract,  in  order  to 
charge  him  with  the  payment  of  the  money. 


ALBANY,  JANUARY,  1848.  165 

Rockwell  v.  Rockwell 

W.  Hayt  for  the  plaintiffs,  contended  that  the  breach  alleged 
was  sufficient,  and  amounted  in  substance  to  an  allegation  that 
the  sum  mentioned  in  the  note  had  not  been  paid  either  in 
logs  or  money. 

By  the  Court j  NELSON,  Ch.  J.  The  objection  taken  to  the 
declaration  is,  that  the  breach  alleged  is  not  sufficiently  com- 
prehensive to  show  a  cause  of  action  j  that,  in  order  to  this,  a 
non-delivery  of  the  logs  should  have  been  averred.  In  Gleason 
v.  Pinney,  (5  Cotoen,  152, 411,)  the  suit  was  upon  a  chattel  note 
similar  in  all  respects  to  the  one  in  this  case.  It  was  there 
held,  in  substance,  by  a  majority  of  the  court,  (see  5  Wend. 
393,)  to  be  a  contract  for  the  delivery  of  chattels;  and 
that  the  measure  of  damages  was,  not  the  sum  specified,  but 
the  value  of  the  goods  agreed  to  be  delivered.  Savage,  Ch.  J. 
dissented,  being  of  opinion  that  the  sum  specified  in  the  note  was 
the  debt  due  in  dollars  and  cents,(a)  and  the  stipulation  for  the 
delivery  of  goods  a  mere  mode  of  payment.  The  case  was  carried 
to  the  court  for  the  correction  of  errors,  where  the  judgment  of 
the  supreme  court  was  unanimously  reversed.  (5  Wend.  393.) 
Construing  the  note  upon  the  principle  thus  settled  by  the 
court  of  errors,  the  breach  alleged  in  this  case  is  co-extensive 
with  the  legal  import  of  the  contract.  It  covers  the  sense  and 
substance  of  the  obligation  as  settled  by  judicial  interpretation. 
The  essence  of  the  defendant's  liability  is,  to  pay  865  accord- 
ing to  the  tenor  and  effect  of  the  note  ;  and  an  averment  that  it 
has  not  been  thus  paid  is  consequently  an  appropriate  mode  of 
alleging  a  breach.  The  contract,  in  terms,  is  to  pay  the  plain 
tiffs'  testator  $65  in  good,  merchantable  hemlock  saw- logs, 
and  it  seems  to  me  a  most  obvious  conclusion,  that  an  allegation 
of  non-payment  shows  a  default  with  all  the  certainty  required 
in  pleading. 

Judgment  for  the  plaintiffs. 


(«)  See  Stnens  v.  Low,  (2  Hill,  133.) 


166  CASES  IN  THE  SUPREME  COURT. 


White  v.  Smith. 


WHITE  and  others  vs.  SMITH  and  others. 

Though,  in  an  action  of  assumpsit  against  several  defendants,  commenced  by  dec. 
laration.in  the  recorder's  court  of  the  city  of  Buffalo,  one  of  them  reside  out  of 
the  jurisdiction  of  the  court  and  be  not  served  with  the  declaration,  the  plaintiff 
cannot  treat  the  suit  as  a  mere  nullity. 

A  suit  having  been  commenced,  and  an  attorney  employed  for  the  defendants,  the 
plaintiff,  before  receiving  notice  of  retainer,  entered  a  rule  to  discontinue  and 
commenced  a  second  suit  against  the  defendants  for  the  same  cause  ;  to  which 
they  pleaded  the  pendency  of  the  first  suit  in  abatement :  Held,  that  the  plaintiff 
having  omitted  to  pay  the  costs  of  the  first  suit,  the  rule  for  discontinuance  was 
a  nullity,  and  formed  no  answer  to  the  plea. 

Had  the  plaintiff,  on  receiving  the  plea  in  abatement  and  before  replying,  paid  the 
costs  of  the  first  suit,  the  payment  would  have  related  back  to  the  time  the  rule 
for  discontinuance  was  entered,  and  thus  rendered  it  effectual.  Per  BRONSON,  J. 

Though  the  rule  entered  in  such  case  be,  that  the  plaintiff  have  leave  to  discontinue 
without  costs,  it  will  not  avail  him  unless  the  costs  be  paid. 

ERROR  to  the  recorder's  court  of  the  city  of  Buffalo.  The 
action  was  assumpsit  by  Smith  and  others  against  White  and 
others,  and  was  commenced  by  capias  on  the  2d  of  April,  1841. 
The  defendants  pleaded  in  abatement  another  action  pending  foi 
the  same  cause,  brought  by  the  same  plaintiffs  against  the  same 
defendants  in  the  same  court.  Replication,  taking  issue  on  the 
plea.  On  the  trial,  it  appeared  that  another  action  for  the 
same  cause  was  commenced  against  the  defendants  by  the 
plaintiffs  in  the  recorder's  court,  by  the  Sling  of  a  declaration 
and  service  of  copies  upon  two  of  the  defendants  on  the  24th 
of  February,  1841.  Stearns,  the  third  defendant,  residing  out 
of  the  county,  was  not  served  with  a  copy  of  the  declaration. 
On  the  25th  of  February,  the  two  defendants  served  with  the 
declaration  employed  an  attorney  to  defend  the  suit,  who  gave 
notice  of  retainer  in  that  action  after  the  present  suit  was  com- 
menced and  before  pleading  therein.  On  the  25th  of  March, 
the  plaintiffs  entered  a  rule  in  the  common  rule-book  discon- 
tinuing the  first  suit  without  costs.  No  notice  of  this  rule  ap- 
peared to  have  been  given.  The  plaintiffs  proved  their  cause 
of  action,  and  the  recorder  decided  that  they  were  entitled  to 


ALBANY,  JANUARY,  1843. 


White  v.  Smith. 


recover,  whereupon   the   defendants  excepted.     Verdict  and 
judgment  for  the  plaintiffs.     The  defendants  brought  error. 

D.  Tillinghast,  for  the  plaintiffs  in  error. 
H.  W.  Rogers,  for  the  defendants  in  error. 

By  the  Court,  BRONSON,  J.  Although  one  of  the  defendants 
lived  out  of  the  jurisdiction  of  the  recorder's  court,  and  was 
not  served  with  the  declaration  in  the  first  suit,  that  action  was 
not  a  mere  nullity,  and  I  do  not  see  how  we  can  avoid  revers- 
ing this  judgment.  It  is  settled  that  a  rule  to  discontinue  does 
not  put  an  end  to  the  suit  until  the  costs  are  paid.  (McKen- 
ster  v.  Van  Zandt,  1  Wend.  13  j  James. \.  Delavan,  7  id.  511.) 
And  this  is  so,  although  the  defendant  has  only  employed  an 
attorney,  and  no  notice  of  the  retainer  has  been  given  at  the 
time  the  rule  to  discontinue  is  entered,  which  was  the  case 
here.  (Robinson  v.  Taylor,  12  Wend.  191.)  When  the  plea 
in  abatement  in  the  second  suit  was  received,  the  plaintiffs 
should  have  paid  the  costs  of  the  first  action  before  replying, 
and  such  payment  would  have  related  back  to  the  time  the 
rule  to  discontinue  was  entered,  which  was  prior  to  the  com- 
mencement of  the  second  suit.  (Brandt  v.  Peacock,  1  Barn. 
fy  Cress.  649.)  This  would  have  avoided  the  difficulty.  But 
the  costs  were  not  paid,  and  the  first  suit  was  consequently 
pending  at  the  time  of  replying.  Indeed,  as  the  costs  have 
never  been  paid,  that  action  is  pending  still. 

As  the  rule  entered  was,  that  the  suit  be  discontinued  with- 
out costs,  it  is  said  that  it  was  conclusive  upon  the  defendants 
until  the  rule  should  be  set  aside.  But  the  cases  to  which  I 
have  referred  show  that  the  plaintiff  cannot  get  rid  of  an  ac- 
tion he  has  commenced,  by  entering  an  ex  parte  order  to  which 
he  is  not  entitled.  The  defendant  may  treat  the  suit  as  still 
pending. 

Judgment  reversed. 


168       CASES  IN  THE  SUPREME  COURT. 

Williams  v.  Keech. 


WILLIAMS  vs.  KEECH  and  others. 

An  action  may  bo  maintained  against  the  trustees  of  a  school  district  upon  any 
contract  of  their  predecessors  in  office  which  the  latter  were  authorized  by  law  to 
make,  e.  g.,  a  contract  for  the  wages  of  a  teacher,  or  for  the  building  of  a  school 
house ;  and  this,  whether  the  defendants  have  funds  in  their  hands  or  not. 

The  action,  in  such  case,  will  not  lie  against  those  who  made  the  contract.  Per 
BRONSON,  J. 

Where,  in  an  action  for  building  a  school  house,  it  appeared  that  it  was  built  under 
a  contract  for  a  specified  sum,  and  the  defendants  gave  evidence  that  the  work 
was  improperly  performed ;  held,  not  competent  for  the  plaintiff  to  prove  in  an- 
swer  that  it  would  have  been  worth  more  than  the  contract  price  to  build  tho 
house  in  a  workmanlike  manner. 

ERROR  to  the  Chenango  C.  P.  The  action  was  originally 
brought  in  a  justice's  court  by  Williams  against  Keech,  Wilcox 
and  Jaqueth,  as  trustees  of  school  district  No.  7  in  the  town 
of  Columbus  j  and  the  plaintiff  declared  in  assumpsit  for  work, 
labor  and  materials  in  building  a  school  house  for  the  district. 
On  the  trial,  it  appeared  that  the  work  was  done  under  a 
written  contract,  dated  June  29,  1839,  between  the  plaintiff  of 
the  one  part,  and  Allcott,  Page  and  Rowe  as  trustees,  who 
were  in  fact  at  that  time  the  trustees  of  the  district.  The 
plaintiff  agreed  to  have  the  house  completed  by  the  first  day  of 
November  then  next,  and  the  trustees  agreed  to  pay  the  plain- 
tiff $150  for  the  work  when  the  house  should  be  completed. 
In  October,  1839,  before  the  work  was  finished,  the  defen- 
dants were  elected  trustees  of  the  district,  and  the  trustees  who 
made  the  contract  went  out  of  office.  They  had  previously, 
on  the  18th  of  July,  1840,  paid  the  plaintiff  $138,48  on  the 
contract. 

The  defendants  gave  evidence  to  show  that  the  work  was 
not  well  done.  In  answer  to  this,  the  justice  allowed  the 
plaintiff  to  prove  that  it  would  have  been  worth  more  than  the 
contract  price  to  build  the  house  in  a  workmanlike  manner. 
This  evidence  was  objected  to  by  the  defendants.  The  justice 
gave  judgment  for  the  plaintiff  for  $17,67,  besides  costs.  On 


ALBANY,  JANUARY,  1843. 


Williams  ».  Keech. 


certiorari,  the  common  pleas  reversed  the  judgment,  and  the 
plain  tiff  b  ought  error. 

Ji.  L.  Pritchard,  for  the  plaintiff  in  error. 

H.  0.  Southworth,  for  the  defendants  in  error. 

By  the  Court,  BRONSON,  J.  A  doubt  was  formerly  express- 
ed whether  the  trustees  of  a  school  district  could  bind  their 
successors  by  a  contract  for  the  payment  of  money.  (Randall 
v.  Hubbardj  1  Cowen,  262,  note.)  But  that  decision  was  un- 
der the  school  act  of  1819,  and  it  has  since  been  decided  that 
the  trustees  may  bind  their  successors  by  a  contract  for  the 
payment  of  a  teacher's  wages.  (Silver  v.  Cummings,  7  Wend. 
181.)  Under  the  present  statute,  if  it  was  not  so  before,  I 
think  district  trustees  may  be  sued  upon  any  contract  made  by 
their  predecessors  in  office,  which  they  were  authorized  by  law 
to  make.  The  trustees  are  a  quasi  corporation,  and  they  not 
only  may,  but  should  be  treated  as  such  when  actions  are 
brought  against  them  upon  contracts.  As  to  the  wages  of 
teachers,  the  question  is  already  settled,  and  there  is  no  differ- 
ence in  principle  between  that  case  and  a  contract  for  building 
a  school  house.  The  wages  are  to  be  paid  out  of  the  money 
received  from  the  commissioners,  so  far  as  tha  will  go,  and 
the  residue  is  to  be  collected  by  tax.  For  building  a  school 
house,  the  trustees  are  to  pay  out  of  the  funds  collected  and  paid 
to  them  for  that  purpose.  (1  R.  S.  481,  §  75,  svb.  5.)  Those 
funds  are  usually  raised  by  tax,  and  in  this  case  the  money  was 
undoubtedly  received  by  the  trustees  who  made  the  contract. 
The  balance  which  remained  in  their  hands  when  they  went 
out  of  office  was  to  be  paid  over  to  their  successors.  (Id.  486. 
§  98,  99.)  There  was  no  pretence  on  the  trial  that  the  defen- 
dants had  not  the  necessary  funds  in  their  hands  to  pay  the 
balance,  if  any,  which  was  due  to  the  plaintiff. 

But  whether  the  defendants  had  funds  or  not,  I  think  they  were 
liable  to  be  sued  on  the  valid  contract  of  their  predecessors  in 

VOL.  IV.  22 


170       CASES  IN  THE  SUPREME  COURT. 


Williams  v.  Keech. 


office.  Provision  has  been  made  by  law  for  suits  by  and 
against  many  public  officers,  including  the  trustees  of  school 
districts.  (2  R.  S.  473, 4,  §  92, 96.)  When  the  officer  is  sued, 
the  suit  does  not  abate  by  his  death,  removal  or  resignation, 
nor  by  the  expiration  of  his  term  of  office ;  but  the  name  of 
his  successor  is  to  be  substituted.  (Id.  474,  §  100.)  This  ne- 
cessarily supposes  that  the  successor  must  answer  upon  the 
contract  of  the  officer  who  went  before  him.  Provision  has  also 
been  made  for  levying  the  money  recovered  against  public  offi- 
cers ;  and  as  to  the  trustees  of  school  districts,  the  judgment  is 
to  be  collected  in  the  same  manner  as  against  individuals,  and 
the  amount  collected  is  to  be  allowed  to  the  trustees  in  their 
official  accounts.  (Id.  476,  §  108.)  Under  this  system,  the 
action  not  only  may,  but  it  must  be  brought  against  the  per- 
sons who  hold  the  office  at  the  time  the  suit  is  commenced,  al- 
though the  contract  was  made  with  their  predecessors.  The 
trustees  who  made  this  contract  went  out  of  office  before  the 
time  for  payment  arrived.  They  could  not  have  been  sued, 
and  the  action  was  well  brought  against  their  successors. 

But  the  justice  committed  a  fatal  error  in  allowing  the  plain- 
tiff to  prove  that  it  would  have  been  worth  more  than  the  con- 
tract price  to  build  the  house  in  a  workmanlike  manner.  The 
plaintiff  was  bound  by  his  contract,  and  when  evidence  was 
given  to  show  that  he  had  not  faithfully  performed  the  agree- 
ment, it  was  no  answer  to  prove  that  he  had  made  a  bad  bar- 
gain. On  this  ground,  the  judgment  of  the  justice  was  prop- 
erly reversed  by  the  common  pleas. 

Judgment  affirmed. 


ALBANY,  JANUARY,  1843.  17  j 


Fuller  t.  Van  Camp. 


FULLER  vs.  VAN  GEESEN. 

A  deed  executed  by  a  master  under  a  decree  of  foreclosure  in  chancery,  panes  the 
title  to  the  purchaser  at  the  moment  of  delivery,  though  the  report  of  sale  be  not 
made  and  confirmed  until  sometime  afterward. 

Even  if  it  were  otherwise,  the  subsequent  confirmation  of  the  sale  would  relate 
back  to  the  delivery  of  the  deed,  and  thus  give  it  effect  from  that  time  as  against 
an  intruder  into  the  premises.  Per  COWEN,  J. 

One  who  enters  upon  land  under  a  contract  of  purchase,  but  who  afterwards  fails 
to  make  payments  according  to  the  contract,  and  disavows  all  intent  to  make 
them,  is  as  effectually  a  wrong-doer  as  if  his  original  entry  had  been  without 
color  of  right.  Per  COWEN,  J. 

A  special  verdict  must  find  facts ;  not  the  mere  evidence  of  facts. 

A  decree  of  foreclosure  is  inoperative  by  way  of  estoppel  upon  one  not  made  a 
party  to  the  suit,  and  who  entered  into  possession  of  the  mortgaged  premises  be- 
fore  the  suit  was  commenced  ;  nor  can  he  be  turned  out  of  possession  by  an  exe- 
cution on  the  decree. 

In  ejectment,  however,  by  a  purchaser  under  the  decree,  against  one  not  a  party, 
the  former  may  use  the  record  of  the  foreclosure  suit  by  way  of  deraigning 
title. 

The  decree  cannot  be  invalidated  or  questioned,  in  such  case,  on  the  ground  of 
mere  error  or  irregularity. 

Where  the  charter  of  a  corporation  gave  the  company  power  to  take  mortgages, 
and  then  provided  that  all  sales  in  virtue  of  them  should  be  made  in  the  county 
•where  the  property  was  situated :  held,  that  a  decree  of  foreclosure,  though  de- 
scribing the  property  as  being  in  the  county  of  O.,  and  directing  a  sale  there, 
whereas  it  was  situated  in  the  county  of  M.,  was  not  impeachable  on  this  ground 
collaterally ;  and  that,  upon  a  sale  made  in  pursuance  of  it,  the  purchaser  ac- 
quired a  good  title. 

The  clause  in  the  charter  may  be  satisfied  by  confining  it  to  a  summary  foreclo- 
sure at  law ;  at  all  events,  even  if  applicable  to  a  foreclosure  in  chancery,  it  is 
but  directory  as  to  that  court,  and  an  error  in  respect  to  it  can  only  be  corrected 
on  appeal.  Per  Co  WEN,  J. 

EJECTMENT,  tried  at  the  Monroe  circuit,  in  1842,  before 
DAYTON,  C.  Judge.  The  action  was  brought  to  recover  pos- 
session of  lots  No.  7  and  8  in  the  19th  section  of  town  No.  4 
of  the  Triangular  Tract,  situated  in  Clarkson,  Monroe  county. 
A  special  verdict  was  rendered  finding  the  following  facts, 
viz.  :  On  the  14th  of  December,  1833,  H.  Davis,  being  seised 
in  fee  of  the  lots  in  question,  mortgaged  them  to  "  The  Far- 


172       CASES  IN  THE  SUPREME  COURT. 

Fuller  v.  Van  Geesen. 

mers'  Fire  Insurance  and  Loan  Company,"  with  480  acres  be 
side,  situated  in  the  same  town,  and  459,T§7  acres  situated  in 
Clarendon,  Orleans  county.  By  several  conveyances  the 
equity  of  redemption  in  the  lots  in  question  passed  from  Davis 
to  A.  M.  Schermerhorn,  who  took  title  on  the  27th  of  March, 
1835.  On  the  24th  of  February,  1840,  "  The  Farmers'  Loan 
and  Trust  Company,"  successors  of  the  "  The  Farmers'  Fire 
Insurance  and  Loan  Company,"  filed  their  bill  for  foreclosure 
and  sale  of  the  mortgaged  premises,  making  A.  M.  Schermer- 
horn and  divers  others  parties,  but  not  the  defendant  in  this  suit, 
though  he  was  in  possession  before  the  bill  was  filed.  On  the 
10th  of  March,  1841,  a  decree  was  made  directing  the  whole 
mortgaged  premises  mentioned  in  the  bill  of  complaint,  or  so 
much  thereof  as  might  be  sufficient  &c.,  to  be  sold  in  the  county 
where  the  said  mortgaged  premises  or  the  greater  part  thereof 
were  situated.  The  decree  also  directed  that  the  master  should 
give  a  deed  to  the  purchaser  &c.  ;  that  such  purchaser  should  be 
let  into  possession  &c.  ;  and  that  any  of  the  parties  to  the  fore- 
closure suit  who  might  be  in  possession  of  the  premises  so  sold 
&c.j  and  any  person  who,  since  the  commencement  of  said 
suit,  had  come  into  possession  under  them  or  either  of  them, 
should  deliver  possession  thereof  to  the  purchaser  &c.  on  pro- 
duction of  the  master's  deed  and  a  certified  copy  of  the  order 
confirming  the  report  of  the  sale,  after  such  order  had  become 
absolute.  From  the  description  of  the  mortgaged  premises  in 
the  decree,  it  appeared  that  the  greater  part  of  them  was  situ- 
ated in  the  county  of  Orleans  ;  whereas  in  fact  the  greater 
part  wap  situated  in  the  county  of  Monroe.  The  aggregate 
value  of  the  lands  in  Orleans,  however,  was  greater  than  that 
of  the  lands  in  Monroe.  The  sale  was  made  on  the  llth  of 
September,  1841,  in  the  county  of  Orleans,  and  the  premises 
in  question  were  bid  in  by  the  plaintiff,  who  thereupon 
paid  the  purchase  money  and  received  a  deed  from  the  mas- 
ter. Shortly  after  the  sale,  the  plaintiff  called  on  the  de- 
fendant with  the  master's  deed ;  and  the  defendant  told  him 
he  claimed  by  contract  of  purchase  made  with  A.  M.  Scher- 


ALBANY,  JANUARY,  1843.  173 


Fuller  v.  Van  Gecaen. 


merhoro  j  that  he  had  not  made  the  payments  as  they  became 
due  to  Schermerhorn,  and  did  not  mean  to  pay  any  thing  fur 
ther.  Thereupon,  and  on  the  9th  of  October,  1841,  this  suit 
was  commenced.  The  master's  report  of  sale,  however,  was 
not  made  till  the  15th  of  December  following.  It  was  filed 
on  the  12th  of  January,  1842  j  and  the  same  day  an  order 
confirming  it  nisi  &c.  was  entered,  which  became  absolute  in 
eight  days  thereafter. 

By  the  charter  of  the  "  The  Farmers'  Loan  and  Trust  Com- 
pany" it  was  provided,  that  "  all  sales  under  the  mortgages  to 
be  taken  or  holden  by  the  said  corporation  &c.  shall  be  made 
in  the  county  where  the  said  mortgaged  property  shall  be 
situated."  (See  Sess.  L.  of  1822,  p.  47,  §  3,  of  ch.  50,  in  con- 
nection with  Sess.  L.  of  1836,  p.  281,  ch.  211.) 

S.  L.  Selden,  for  the  plaintiff. 

F.  M.  Haight,  for  the  defendant. 

By  the  Court,  COWEN,  J.  The  master's  sale  passed  the  title 
presently  ;  and  the  objection  that  this  suit  was  prematurely 
brought  cannot  avail.  In  England  it  would  have  been  other- 
wise, because  the  deed  is  there  withheld  till  the  final  order 
confirming  the  sale  be  made  absolute  ;  but  all  their  cases  declare 
the  law  as  it  is  now  claimed  to  be  by  the  plaintiff's  counsel j 
viz.  that  the  title  vests  at  the  date  of  the  conveyance.  (Hoffm. 
Master,  220,  222 ;  Ex  parte  Manning,  2  P.  Wms.  410 ; 
Blount  v.  Blount,  2  Jltk.  637.)  In  Ex  parte  Minor,  (11  Vesey, 
559,)  mainly  relied  on  by  the  counsel  for  the  defendant,  the 
difference  of  practice  as  to  the  time  of  giving  the  deed  appears. 
The  lord  chancellor  says,  "  though  confirmed  as  the  best  pur- 
chaser, if  he  had  not  got  the  conveyance,  he  wduld  have  been 
entitled  to  say  the  estate  was  not  his."  Indeed  I  suspect  this 
is  the  first  time  it  was  ever  contended  that  a  regular  deed  in 
fee  would  not  pass  the  title  at  the  time  of  its  delivery.  Beside, 


174  CASES  IN  THE  SUPREME  COURT. 


Fuller  c.  Van  Geeaen. 


if  it  were  possible  to  doubt  of  such  a  proposition,  all  question 
would  be  removed  by  the  doctrine  of  relation.  The  sale  and 
deed  being  afterwards  confirmed  by  an  order,  this  related  to  the 
date  of  the  deed  ;  thus  overreaching  the  claim  of  a  mere  intru- 
der into  the  premises.  (Jackson,  ex  dem.  New  Loan  Officers,  $c. 
v.  Bull,  1  John.  Cas.  81  ;  Jackson,  ex  dem.  De  Forest,  v. 
Ramsay,  3  Cowen,  75  ;  Jackson,  ex  dem.  Noah,  v.  Dickenson, 
15  John.  309  ;  Bissel  v.  Payn,  20  id.  3  ;  Klock  v.  Cronk- 
hite,  1  Hill,  107  j  Lathrop  v.  Ferguson,  22  Wend.  116  ;  Nel- 
lis  v.  Lathrop,  id.  121,  122.) 

If  we  concede  that  the  defendant  came  in  by  contract  to 
purchase  of  Schermerhorn,  the  case  is  not  varied ;  for  the  ver- 
dict finds  as  strongly  and  in  the  same  breath,  that  he  had  failed 
to  make  his  payments,  and  disavowed  all  intent  to  make  them, 
though  the  plaintiff  offered  to  continue  the  possession  to  him 
if  he  would,  and  finally  to  make  him  a  title  on  the  same  terms 
as  Schermerhorn  had  agreed  to.  This  shows  him  to  be  as 
effectually  a  wrongdoer  as  if  his  original  entry  had  been  with- 
out color  of  right. 

But  the  jury  have  merely  stated  the  evidence  of  the  defen- 
dant coming  in  under  Schermerhorn.  Such  evidence  must  go 
for  nothing.  A  special  verdict  must  find  facts  ;  not  the  evi- 
dence of  facts.  If  it  be  material,  therefore,  to  either  party, 
that  the  defendant  claimed  under  Schermerhorn,  more  should 
have  been  found  than  his  mere  admissions  in  conversation  with 
the  plaintiff  on  his  demanding  possession.  The  defendant 
must  consequently  be  regarded,  for  all  purposes,  as  a  mere 
stranger.  The  distinction  is  probably  of  very  little  conse- 
quence ;  for  not  coming  in  pedente  lite,  nor  being  made  a  party, 
the  decree  can  have  no  bearing  upon  him  merely  by  way  of 
estoppel.  He  could  not  be  turned  out  of  possession  by  an  exe- 
cution on  the  decree.  (Kershaw  v.  Thompson,  4  John.  Ch. 
Rep.  609 ;  Valentine  v.  Teller,  Hopk.  422.)  Nor  can  he  be 
regarded  as  in  any  degree  bound  or  affected  as  party  or  privy. 
(Haines  v.  Beach,  3  John.  Ch.  Rep.  459  ;  Watson  v.  Spence, 
20  Wend.  260.) 


ALBANY,  JANUARY,  1843.  175 


Fuller  v.  Van  Geeaen. 


The  record  in  chancery  is,  however,  evidence  of  its  own  ex- 
istence ;  and  may  be  received  as  a  muniment  of  title  against 
the  defendant,  as  well  as  against  any  other  stranger  ;  like  a 
judgment  on  which  a  sheriff  has  sold.  In  this  view,  I  see 
nothing  that  the  defendant  can  oppose  to  the  plaintiff.  The 
jury  find  enough  to  give  him  a  complete  right.  They  find 
that  the  mortgagor  being  seised  in  fee,  mortgaged  to  the  com- 
pany, who  foreclosed  and  sold  through  a  master,  and  the  mas- 
ter conveyed  to  the  plaintiff;  Schermerhorn  and  all  other 
proper  parties  being  brought  into  court,  and  the  defendant 
being  a  mere  naked  possessor.  True,  he  was  in  before  the  bill 
was  filed ;  but  he  had  taken  no  title  by  which  he  stands  con- 
nected in  any  way  with  the  mortgagor,  or  those  claiming  under 
him.  No  right  of  his  is  overreached,  because  he  had  none. 
In  Watson  v.  Spence,  the  interest  of  the  mortgagor  was  sold 
out  to  third  persons  before  the  bill  was  filed  against  him. 
Nothing  was  left  in  him  to  foreclose  when  the  bill  was  filed  ; 
yet  it  was  against  him  alone.  Here  every  thing  was  left  in 
Schermerhorn.  The  decree  and  sale  operated  upon  his  inter- 
est. It  passed  all  that  to  the  plaintiff  as  effectually  as  if  the 
deed  had  been  under  his  own  hand.  In  Haines  v.  Beach,  the 
person  claiming  to  be  unprejudiced  by  the  decree,  because  not 
made  a  party,  was  a  subsequent  incumbrancer.  It  is  enough, 
in  the  case  at  bar,  to  say  that  a  foreclosure  against  the  true 
owner  who  gives  a  mortgage,  will  make  a  good  title  in  the 
purchaser  as  between  him  and  the  owner ;  a  proposition  which 
is  very  clear. 

It  need  not  be  denied  that,  had  the  sale  in  question  been 
made  under  a  power  contained  in  the  mortgage,  the  auction  must 
have  been  in  the  counties  respectively  where  the  lands  lie.  But 
the  provision  in  the  charter  does  not  take  away  the  jurisdiction 
of  the  court  of  chancery.  That  court  proceeds  irrespective  of 
any  conventional  power  to  foreclose.  Even  if  the  provision 
be  regarded  as  mandatory  and  restrictive  upon  that  court,  it  is 
but  directory  ;  and  the  most  that  could  have  been  done  by  way 


176  CASES  IN  THE  SUPREME  COURT. 

Fuller  ».  Van  Geesen. 

of  impeaching  the  decree,  was  to  appeal.  The  proceeding  can- 
not be  enquired  into  collaterally.  The  decree  binds  till  it  is 
reversed.  The  clause  in  the  charter  may  be  satisfied  by  con- 
fining it  to  a  summary  foreclosure  by  advertisement. 

The  decree  contains,  in  effect,  a  direction  to  sell  in  the  coun- 
ty of  Orleans.  It  describes  the  greater  part  of  the  mortgaged 
premises  as  lying  in  that  county  ;  and  then  directs  a  sale  in  the 
county  where  the  greater  part  lies.  The  master  governed 
himself  by  the  location  appearing  on  the  face  of  the  decree  ;  in 
•which  he  was  right.  The  chancellor  had  power  to  give  the 
direction.  If  that  direction  was  irregular  or  inexpedient,  the 
whole  matter  would,  no  doubt,  have  been  set  right  on  Scher- 
merhorn  or  either  of  the  other  defendants  moving  the  chancel- 
lor to  have  it  corrected,  at  any  time  before  the  sale  was  con- 
firmed. The  defendants  in  the  chancery  suit  are  the  only  per- 
sons who  could  ever  be  heard  to  complain  ;  and  the  day  has 
gone  by  even  for  them.  Above  all,  it  is  not  for  the  defendant, 
a  mere  stranger,  to  come  in  and  raise  the  objection  collaterally. 
The  case  may  be  put  in  this  way  :  The  decree  misjudges  on  a 
material  fact,  the  location  of  the  land  ;  and  a  stranger  claims 
to  contradict  it  by  a  special  verdict. 

The  plaintiff  is  entitled  to  judgment  on  the  special  verdict, 
according  to  the  claim  of  his  declaration. 

Judgment  for  the  plaintiff. 


ALBANY,  JANUARY,  1843.  177 

MUn  t».  Spinola. 


MILN  vs.  SPINOLA. 

A  mortgagee  of  a  ship,  who  has  taken  possession  and  caused  it  to  be  registered  in  his 
own  name,  will,  in  general,  be  liable  for  supplies  famished  and  repairs  made ; 
and  this,  though  his  relation  to  the  ship  was  unknown  to  the  creditor  when  the 
demand  arose. 

ERROR  to  the  New- York  C.  P.  Spinola  sued  Miln  in  the 
court  below  for  supplies  furnished  to  the  ship  Henry  Kneeland, 
amounting  to  $146,54.  On  the  10th  of  March,  1840,  David 
H.  Robertson  executed  an  absolute  bill  of  sale  of  two  thirds 
of  the  ship  to  the  defendant ;  and  on  the  10th  of  April  follow- 
ing, the  defendant,  on  his  own  oath  that  he  and  one  Thomas  D. 
Bickford  were  the  only  owners  of  the  ship,  took  out  a  register 
in  their  names.  The  defendant  took  immediate  possession  of 
the  ship,  and  in  November  following  the  supplies  in  question 
were  furnished,  when  the  ship  was  about  sailing  from  New- York 
for  Gibraltar.  The  defendant  proved  that  the  bill  of  sale, 
though  absolute  in  its  terms,  was  in  fact  intended  as  a  mortgage 
security  only.  The  judge  charged  the  jury,  in  substance,  that 
the  mortgagee  in  possession  was  answerable  for  supplies  furnish- 
ed to  the  ship,  and  the  fact  that  the  plaintiff  did  not  know  that 
the  defendant  was  owner  at  the  time  the  supplies  were  furnished 
would  not  alter  the  case,  unless  the  plaintiff  had  given  credit  ex- 
clusively to  some  one  else.  The  defendant  excepted,  and,  judg- 
ment having  been  rendered  against  him,  sued  out  a  writ  of  error. 

J.  W.  White,  for  the  plaintiff  in  error. 
A.  S.  Garr,  for  the  defendant  in  error. 

By  the  Court ,  BRONSON,  J.  Although  the  mortgagee  of  a 
ship  who  has  not  taken  possession  cannot  be  charged  as  owner ; 
yet  where  he  is  in  possession,  and  has  caused  the  ship  to  be  re-; 
gistered  in  his  own  name,  I  see  no  reason  why  he  should  not 
be  regarded  as  owner,  and  as  such,  answerable  for  supplies 

VOL.  IV.  23 


178       CASES  IN  THE  SUPREME  COURT. 


Johnson  v.  Gilbert. 


furnished,  and  repairs  made  upon  the  ship.  (Champlin  v.  But 
ler,  18  John.  R.  169  ;  Tucker  v.  Bujfington,  15  Mass.  R.  477 ; 
and  see  3  Kent's  Com.  133 — 6  ;  Abbott  on  Ship.  17 — 19,  and 
note  (1),  p.  19.)  In  most  of  the  cases  where  the  question  has 
been  discussed  whether  a  mortgagee  out  of  possession  could  be 
charged  as  owner,  it  has  been  taken  for  granted  that  he  might 
be  so  charged  if  he  had  taken  possession,  and  I  am  not  aware 
of  any  good  reason  why  such  should  not  be  the  rule. 

Although  the  plaintiff  probably  expected  to  get  his  pay  from 
Robertson  when  the  supplies  were  furnished,  he  charged  the 
goods  to  the  ship  "  and  owners,"  and  I  think  he  was  at  liberty 
to  resort  to  the  defendant. 

Whether  the  judge  was  right  dr  not  in  his  comments  upon 
the  evidence,  is  a  question  which  cannot  be  made  on  a  writ  of 
error.. 

Judgment  affirmed. 


JOHNSON  ttt.  GILBERT. 

The  statute  of  frauds  relating  to  promises  to  answer  for  the  debt,  default  or  mis. 
carriage  of  another,  (2  JR.  S.  135,  §  2,  subd.  2,)  applies  only  where  the  prom- 
isor stands  in  the  relation  of  a  surety  for  some  third  person  who  is  the  principal 
debtor.  Per  BRONSON,  J. 

Accordingly,  in  an  action  on  a  written  promise  to  guaranty  the  payment  of  a  chat- 
tel note,  it  appearing  that  the  defendant  transferred  the  note  to  the  plaintiff  and 
made  the  guaranty  in  consideration  of  moneys  paid  by  the  plaintiff  for  the  de- 
fendant at  his  request ;  held,  that  the  promise  was  valid,  though  it  expressed  no 
consideration. 

ERROR  to  the  Chenango  C.  P.  Johnson  sued  Gilbert  before 
a  justice  of  the  peace  in  assumpsit,  and  recovered  $29,27  be- 
sides costs.  The  defendant  appealed  j  and  on  the  trial  in  the 
C.  P.,  the  plaintiff  offered  to  prove  the  following  case.  One 
Eastman  made  a  note  as  follows :  "  By  the  first  of  September 
next,  for  value  received,  I  promise  to  pay  William  D.  Gilbert 
[the  defendant  in  this  suit]  a  first  rate  two  horse  wagon  wood, 


ALBANY,  JANUARY,  1843. 


Johnson  r.  Gilbert 


painted,  with  the  labor  of  setting  the  boxes.  Guilford,  June 
15,  1833.  (Signed)  George  Eastman."  On  the  9th  day  of 
October,  1833,  the  plaintiff,  at  the  defendant's  request,  paid  to 
one  James  Sherwood  a  debt  of  twenty-five  dollars  which  the 
defendant  owed  to  Sherwood  ;  and  in  consideration  of  that 
payment,  the  defendant  transferred  the  note  of  Eastman  to  the 
plaintiff,  and  endorsed  thereon  a  guaranty  in  these  words  : 
"I  hereby  guaranty  the  payment  of  this  note,  which  is  825. 
(Signed)  William  D.  Gilbert."  The  plaintiff  had  repeatedly 
demanded  payment  from  Eastman,,  but  he  had  not  paid  the 
note.  The  court  decided  that  the  contract  was  void  within  the 
statute  of  frauds,  and  nonsuited  the  plaintiff.  He  excepted, 
and,  after  judgment,  brought  error. 

H.  Bennett,  for  the  plaintiff  in  error,  cited  Leonard  v.  Vre- 
denburgh,  (8  John.  R.  29;)  Gold  v.  Phillips,  (10  id.  412;) 
Myers  v.  Morse,  (15  id.  412;)  Olmsted  v.  Greenly,  (18  id. 
12 ;)  Farley  v.  Cleveland,  (4  Cowen,  432,  and  9  id.  639,  in  er- 
ror;) Chapin  v.  Merrill,  (4  Wend.  657  ;)  Rogers  v.  Kneeland, 
(10  id.  218,  and  13  id.  114,  in  error;)  Mercein  v.  Andrews, 
(10  id.  461.) 

J\.  C.  Moses,  for  the  defendant  in  error,  cited  2  R.  S.  135, 
^  2 ;  Packer  v.  WUlson,  (15  Wend.  343  j)  Douglass  v.  How- 
land,  (24  id.  35.) 

By  the  Court,  BRONSON,  J.  If  the  statute  of  frauds  has  any 
thing  to  do  with  this  case,  the  plaintiff  cannot  recover.  The 
written  guaranty  neither  expresses  a  consideration,  nor  can  it 
be  inferred  from  the  writing  that  it  was  made  upon  any  consid- 
eration. (2  R.  S.  135,  $  2.)  But  the  statute  of  frauds  has 
nothing  to  do  with  the  case.  That  only  applies  where  the  per- 
son making  the  promise  stands  in  the  relation  of  a  surety  for 
some  third  person  who  is  the  principal  debtor.  This  was  not 
an  undertaking  by  the  defendant  to  pay  the  debt  of  Eastman ; 
but  it  was  an  agreement  to  pay  his  own  debt  in  a  particular 
way.  The  plaintiff  had,  upon  request,  paid  a  debt  of  twenty- 


180  CASES  IN  THE  SUPREME  COURT. 

Johnson  v.  Gilbert. 

five  dollars  which  the  defendant  owed  to  Sherwood,  and  had 
thus  made  himself  a  creditor  of  the  defendant  to  that  amount. 
If  the  matter  had  not  been  otherwise  arranged,  the  plaintiff 
might  have  sued  the  defendant  and  recovered  as  for  so  much 
money  paid  for  him  upon  request.  But  the  plaintiff  agreed  to 
accept  payment  in  a  different  way,  to  wit,  by  the  transfer  of 
Eastman's  note  for  the  wood  work  of  a  wagon,  with  the  de- 
fendant's undertaking  that  the  note  should  be  paid.  The  de- 
fendant, instead  of  promising  that  he  would  pay  himself,  agreed 
that  Eastman  should  pay.  He  might  do  that,  whether  East- 
man was  his  debtor  or  not ;  and  the  fact  that  Eastman  was  a 
debtor,  d.oes  not  change  the  character  of  the  defendant's  under- 
taking, and  make  it  a  case  of  suretyship  within  the  statute  of 
frauds. 

If  A.  promise  B.,  upon  a  sufficient  consideration  moving 
wholly  between  them,  that  a  stranger  will  pay  a  sum  of  money 
or  do  any  other  act,  this  is  an  original  undertaking,  and  not 
within  the  statute;  and  it  makes  no  difference  whether  the 
stranger  is  under  an  obligation  to  do  the  act  or  not.  If  A. 
sell  and  deliver  his  horse  to  B.  upon  a  promise  by  the  latter 
that  C.  will  pay  a  hundred  dollars,  the  agreement  is  just  as 
obligatory  as  it  would  have  been  had  B.  promised  that  he 
would  pay  the  money  himself,  and  in  neither  case  is  a  writing 
essential  to  the  validity  of  the  contract.  And  if  in  such  a  case 
B.  deliver  A.  the  note  of  C.  for  one  hundred  dollars,  and  agree 
that  the  note  shall  be  paid  at  maturity,  or  that  it  may  be  col- 
lected by  due  process  of  law,  it  is  still  an  original  undertaking, 
and  not  within  the  statute  of  frauds.  But  if  C.  "wishes  to  ob- 
tain credit  with  A.,  or,  being  his  debtor,  desires  forbearance, 
and  B.  comes  in  as  his  surety,  there  the  undertaking  of  B.  is 
collateral  to  that  of  the  principal  debtor,  and  the  promise  must 
be  in  writing. 

The  judgment  must  be  reversed;  and,  in  pursuance  of  a 
stipulation  contained  in  the  case,  judgment  must  be  rendered 
for  the  plaintiff,  instead  of  awarding  a  venire  de  novo. 

Ordered  accordingly. 


ALBANY,  JANUARY,  1843. 


r.  Stebbins. 


FORMAN  and  EVANS  vs.  STEBBINS  and  BUSH. 

In  an  action  on  a  written  promise  to  pay  and  discharge  certain  notes,  describing 
them  by  their  dates,  amounts,  &c.  and  as  having  been  given  by  one  F.  to  the 
plaintiffs ;  held,  that  the  possession  and  production  of  the  promise  by  the  plain 
tiffs  was  presumptive  evidence  of  its  having  been  made  to  them,  though  no 
promisee  was  named  in  it 

Held  further,  that  as  the  notes  produced  by  the  plaintiffs  on  the  trial  corresponded 
with  those  described  in  the  promise,  their  identity  should  be  presumed,  in  the 
absence  of  evidence  to  the  contrary,  and  that  the  plaintiffs  need  not  even 
prove  their  execution. 

ASSUMPSITJ  tried  before  DAYTON,  C.  Judge,  at  the  Monroe 
circuit,  in  April,  1839.  The  plaintiffs  proved  and  gave  in  evi- 
dence a  note  or  undertaking  signed  by  the  defendants,  as  fol- 
lows : 

"  We,  for  value  rec'd,  promise  to  pay  and  discharge  two 
two  several  notes  given  by  John  Furey  to  John  Forman  and 
A.  G.  Evans  [the  plaintiffs,]  one  for  one  hundred  and  ninety  dol- 
lars payable  in  one  year,  and  one  for  the  same  amount — both 
with  interest — the  last  payable  in  two  years — and  dated  fifth 
January,  1836.  Feb'y  16,  1836. 

(Signed)  J.  N.  Stebbins, 

H.  Bush. 

Said  notes  were  given  for  lots  No.  79,  87,  111,  112  and  113, 
in  Independence." 

The  plaintiffs'  counsel  then  produced  two  notes  as  follows  : 

"  $190.     Twelve  months  after  date,  for  value  received,  I 

promise  to  pay  John  Forman  and  Albert  G.  Graves  or  order 

one  hundred  and  ninety  dollars  with  interest  from  this  date. 

Witness  my  hand  and  seal  this  5th  day  of  January,  A.  D.  1836. 

(Signed)  John  Furey."     [L.  s.] 

The  second  note  was  in  all  respects  like  the  first,  except  that 
it  was  payable  "  twenty-four  months  after  date." 

Mr.  Mumford,  the  attorney  for  the  plaintiffs,  testified  that 
he  received  the  three  papers  above  mentioned  enclosed  in  h 
letter  from  Ohio,  with  direction  to  collect  the  amount  from  the 


182  CASES  IN  THE  SUPREME  COURT. 

Forman  v.  Stebbina. 

defendants  ;  and  that  he  applied  to  Stebbins,  one  of  the  defen- 
dants, for  payment,  who  promised  to  arrange  the  same.  He 
had  no  distinct  recollection  whether  he  showed  any  of  the  pa- 
pers to  Stebbins.  f 

The  judge  decided  that,  to  entitle  the  plaintiffs  to  recover, 
they  must  prove  the  due  execution  of  the  two  notes  purporting 
to  be  made  by  Furey,  or  must  in  some  other  way  identify  those 
notes  with  the  notes  described  in  the  undertaking  of  the  defen 
dants.  The  plaintiffs  were  nonsuited,  and  excepted  to  the 
opinion  of  the  judge.  They  now  moved  for  a  new  trial  on  a 
bill  of  exceptions. 

G.  H.  Mumford,  for  the  plaintiffs. 
H.  Humphrey,  for  the  defendants. 

By  the  Court ?  BRONSON,  J.  If  the  instrument  signed  by  the 
defendants  is  not  a  promissory  note,  (see  Hough  v.  Gray,  19 
Wend.  202,  Ketchell  v.  Burns,  24  id.  456,  Leonard  v.  Ma- 
son, 1  id.  522,)  it  is  nevertheless  valid  as  a  guaranty  or  other 
contract  to  pay  the  two  notes  made  by  Furey.  There  may  be 
a  doubt  upon  the  face  of  the  instrument  whether  the  promise 
was  made  to  the  plaintiffs  or  to  Furey.  It  is  said  on  behalf  of 
the  defendants,  that  Furey  probably  sold  the  lots  for  which  his 
notes  were  given  to  the  defendants,  and  that  they  thereupon 
undertook  "  to  pay  and  discharge,"  or,  in  other  words,  to  indem- 
nify him  against  the  notes.  There  is  undoubtedly  some  force 
in  this  suggestion  ;  but  the  case  was  not  put  upon  that  ground 
at  the  circuit.  The  plaintiffs  were  not  nonsuited  on  the  ground 
that  the  promise  was  not  made  to  them,  but  because  they  had 
not  proved  or  identified  the  notes  of  Furey.  This  is  a  bill  of 
exceptions,  and  the  parties  cannot  go  beyond  the  point  on 
which  the  exception  rests.  But  as  this  question  may  arise  up- 
on another  trial,  we  think  it  proper  to  say,  that  there  was  suffi- 
cient presumptive  evidence  that  the  promise  was  made  to  the 
plaintiffs.  The  written  contract  is  found  in  their  hands  and 
produced  by  them ;  and,  in  the  absence  of  all  proof  to  the  con- 


ALBANY,  JANUARY,  1843. 


Boyd  v.  Townsend. 


trary,  the  fair  inference  is  that  the  writing  was  made  and  de- 
livered to  them. 

The  defendants  by  their  contract  admitted  the  execution  of 
the  two  notes  of  Furey,  and  it  was  no  more  necessary  for  the 
plaintiffs  to  prove  the  execution  of  those  notes  than  it  would 
be  to  prove  the  hand  writing  of  the  maker  in  an  action  against 
the  endorser  of  a.  promissory  note.  The  only  proper  question 
was,  whether  the  two  notes  of  Furey  produced  on  the  trial 
were  the  same  notes  which  the  defendants  had  promised  to 
pay.  As  the  notes  produced  by  the  plaintiffs  corresponded  in 
all  respects  with  the  notes  described  in  the  contract,  ant!  as 
there  was  no  evidence  tending  to  a  different  conclusion,  I  think 
their  identity  was  sufficiently  established.  The  nonsuit  must 
therefore  be  set  aside. 

New  trial  granted. 


BOYD  &  BOYD  vs.  TOWNSEND  and  others. 

in  November,  1838,  a  contract  was  entered  into  between  B.  of  the-tmc  part  and  T. 
and  D.  of  the  other,  by  which  B.  agreed  to  accept  and  pay  drafts  drawn  by  T. 
to  an  amount  not  exceeding  $10,000 ;  in  consideration  whereof,  T.  and  D.  agreed 
to  deliver  to  B.  2000  barrels  of  Sour  by  the  15th  of  June,  1839,  to  be  sold  for  the 
payment  of  the  drafts,  and  if  the  sum  received  from  sales  of  the  flour  fell  short 
of  what  was  sufficient  to  meet  the  drafts,  &c.,  T.  and  D.  were  to  pay  the  defi- 
ciency. Held,  that  drafts  drawn  by  T.  and  made  payable  after  the  15th  of 
June,  1839,  were  not  within  the  contract 

Quere,  whether  the  contract  embraced  any  drafts  save  such  as  were  drawn  pay  a- 
ble  at  sight. 

The  rule  that  a  plaintiff  who  proves  all  that  is  laid  in  his  declaration  ought  not  to 
be  nonsuited  even  though  he  fail  to  make  out  a  cause  of  action,  applies  only  to 
cases  where  the  declaration  is  so  defective  that  a  verdict  for  the  plaintiff  on  any 
part  of  it  could  not  be  sustained.  Stmble. 

Where  issue  was  taken  upon  a  declaration  alleging  matters  sufficient  to  make  out 
a  right  of  action,  along  with  others  wholly  insufficient,  and,  at  the  trial,  the 
plaintiff  /ailed  in  sustaining  that  part  of  his  declaration  which  was  good  ;  held, 
though  he  proved  all  the  rest,  he  should  be  nonsuited. 

ASSUMPSIT,  tried  at  the  Seneca  circuit,  in  May,  1842,  before 
MOSELEY,  C.  Judge.     The  declaration  was  special  and  set  forth 


184  CASES  IN  THE  SUPREME  COURT. 

Boyd  ».  Townsend. 

a  written  contract  between  the  plaintiffs,  (James  Boyd  &  Go.,; 
and  the  defendants,  (Edward  S.  Townsend,  Elias  Durfee  and  two 
others,)  bearing  date  November  10th,  1838,  whereby,  in  con- 
sideration of  the  plaintiffs  agreeing  to  accept  and  pay  the  drafts 
of  Edward  S.  Townsend  for  a  sum  not  exceeding  $10,000,  and 
for  the  further  consideration  of  one  dollar  &c.,  the  defendants 
agreed  to  deliver  to  the  plaintiffs  at  their  store  in  the  city  of 
New- York,  &c.  2000  barrels  of  superfine  flour  &c.  by  the  15th 
of  June  then  next,  to  be  sold  for  the  payment  of  said  drafts ; 
and  further,  that  if  the  sum  received  from  sales  of  flour  should 
not  be  sufficient  to  pay  said  drafts,  with  interest  &c.,  the  defen- 
dants would  pay  the  balance.  The  declaration  then  alleged 
that  various  drafts  were  drawn  on  the  plaintiffs  by  Edward  S. 
Townsend,  all  of  which  the  plaintiffs  accepted  and  paid,  viz.  : 
four  several  drafts  drawn  in  November,  1838,  one  for  $1500, 
payable  June  15th  1839,  and  the  other  three  for  $1500,  $1000, 
and  $1000,  payable  respectively,  June  20th,  1839,  June  25th, 
1839,  and  July  1st,  1839  ;  also  two  others  drawn  in  Decem- 
ber, 1838,  one  for  $2000  payable  June  10th,  1839,  and  the 
other  for  $5000,  payable  May  21st,  1839.  Some  of  the  counts 
set  forth  only  the  drafts  which  were  payable  after  the  15th  of 
June,  1839,  while  others  set  forth  these,  together  with  one  of 
those  payable  before.  The  declaration  claimed  the  whole  sum 
guarantied  by  the  contract.  Plea,  the  general  issue. 

At  the  trial,  the  drawing  and  acceptance  of  the  various  drafts 
mentioned  in  the  declaration  were  proved  ;  and  circumstantial 
evidence  was  given  tending  to  show  that  they  were  severally 
paid  by  the  plaintiffs  as  they  fell  due.  It  further  appeared  by 
the  proof  adduced  on  the  part  of  the  plaintiffs,  that  they  had 
received  flour  enough  from  the  defendants  to  meet  all  the 
drafts  payable  before  the  15th  of  June,  1839,  but  not  suf- 
ficient to  meet  the  $10,000.  The  circuit  judge,  being  of 
opinion  that  drafts  payable  after  that  day  were  not  within  the 
contract  of  guaranty,  nonsuited  the  plaintiffs,  who  thereupon 
accepted,  and  now  moved  for  a  new  trial  on  a  bill  of  ex- 
ceptions. 


ALBANY,  JANUARY,  1843.  ]Q5 

Boyd  t.  Townwnd. 
S.  Mathews*  for  the  plaintiffs. 

Ji.  Warden;  for  the  defendants. 

By  the  Court)  COWEN,  J.  It  is  not  said  in  the  agreement 
whether  the  bills  might  be  drawn  on  time  or  not ;  but  flour 
enough  was  to  be  sent  by  the  15th  of  June  for  the  payment 
of  them.  It  is  sufficient  to  say,  with  the  circuit  judge,  that 
a  construction  which  should  allow  bills  on  any  length  of 
time,  however  remote,  would  be  unreasonable.  The  flour  was 
to  be  furnished  for  sale  by  the  15th  of  June,  the  avails  to  be 
appropriated  to  the  payment  of  the  bills,  which  we  think  should 
not,  therefore,  have  been  made  payable  beyond  that  day,  as  all 
of  them  were,  except  the  $2000  and  85000  bills.  The  construc- 
tion contended  for  by  the  plaintiffs  would  have  entitled  them  to 
receive  the  flour,  obtain  its  avails  and  hold  these  for  any  length 
of  time  agreed  on  for  the  bills  between  them  and  E.  S.  Towns- 
end".  It  accords  better  with  the  course  of  commercial  business 
to  suppose  an  intent  that  the  flour  should  be  sold  and  applied 
presently,  on  or  before  the  15th  of  June.  Had  the  parties  in- 
tended it  to  answer  bills  payable  afterwards,  they  would  prob- 
ably have  said  so. 

It  is,  therefore,  as  observed  by  the  circuit  judge,  unnecessa- 
ry to  say  whether  the  contract  did  or  did  not  confine  the  par- 
ties to  bills  payable  on  sight.  It  is  sufficient  that. they  had  no 
right  to  fix  the  time  beyond  the  day  mentioned  for  the  arrival 
of  the  flour. 

But  it  is  insisted  that,  as  all  the  bills  were  set  out  in  the  decla- 
ration, and  this  claimed  that  they  had  been  drawn  within  the  con- 
tract, and  they  were  all  proved,  the  plaintiffs  were  at  least  entitled 
to  a  verdict,  and  the  appropriate  disposition  of  the  question  was 
by  motion  in  arrest  of  judgment ;  not  for  a  nonsuit.  Two  of  the 
bills  were  averred  and  proved  to  have  been  properly  drawn. 
These  alone  were  sufficient  to  support  the  action  pro  tanto.  The 
counts,  averments  and  proof  as  to  the  others  might  be  rejected, 
and  yet  the  action  be  considered  as  well  brought.  The  matter 

VOL.  IV.  24 


J86  CASES  IN  THE  SUPREME.  COURT. 

Boyd  ».  Townsend. 


shown  in  defence,  or  rather  the  defensive  matter  proved  by  the 
plaintiff,  viz.  the  arrival  of  flour  enough  to  pay  all  the  defen- 
dants owed  him,  was  the  ground  of  nonsuit.  It  is  the  same  as 
if  he  had  stopped  with  proving  an  available  demand,  and  the 
defendant  had  then  shown  a  receipt  in  full  or  a  release.  Either 
would  be  a  good  ground  of  nonsuit.  That  the  plaintiff  had 
alleged  and  proved  something  over  and  -above,  his  good  cause 
of  action,  but  which  was  entirely  impertinent,  would  form 
no  answer  to  the  motion. 

The  general  rule  is  laid  down  in  Safford  v.  Stevens,  (2  Wend. 
163,)  on  the  authority  of  Cameron  v.  Reynolds,  (Cowp.  403, 
407.)  It  is,  that  if  the  plaintiff,  on  an  issue  joined  upon  his 
declaration,  prove  every  thing  contained  in  it,  the  remedy  is  by 
arrest.  In  the  latter  case,  the  court  granted  relief  by  arrest, 
though  there  was  also  good  ground  for  a  nonsuit.  The  reason 
given  was,  that  the  defendant  might  have  demurred.  But  the 
declaration  was  there  bad  as  a  whole.  If  it  be  good  in  part, 
there  is  matter  for  a  material  issue,  and  a  sound  verdict  for  the 
plaintiff.  This  may  be  limited  to  the  good  matter.  The  plain- 
tiff then  has  a  legal  cause  of  action  on  the  record.  Failing  to 
make  it  out,  the  very  ground  of  nonsuit  mentioned  by  the  chan- 
cellor in  Safford  v.  Stevens  is  laid  j  viz.  that  the  proof  is  not 
sufficient  to  support  the  declaration.  This  rule  is  satisfied  if 
the  evidence  be,  on  the  whole,  plainly  insufficient,  whether  it 
be  given  in  support  or  defeasance  of  the  action  ;  whether  it 
come  from  the  plaintiff  or  defendant.  (Gregory  v.  Mack, 
3  Hill,  380.)  Take  a  count  in  slander  for  instance,  which 
contains  different  sets  of  words,  some  actionable  and  some  not. 
On  an  issue,  the  plaintiff  fails  to  prove  any  actionable  set ;  or, 
if  he  prove  them  all,  the  defendant  answers  by  a  clear  accord 
and  satisfaction  j  no  one  would  deny  that  either  the  failure 
or  the  answer  would  present  a  case  for  nonsuit. 

New  trial  denied. 


ALBANY,  JANUARY,  1843. 


Mann  c.  The  Herkimer  County  Mutual  Insurance  Company. 


MANN  w.  THE  HERKIMER  COUNTY  MUTUAL  INSURANCE 
COMPANY. 

In  an  action  by  the  assignee  of  a  policy  of  insurance,  brought  in  the  name  of  the 
insured,  quere,  whether  an  allegation  of  notice  of  loss  Sec.  signed  by  the  plain, 
tiff,  will  be  supported  by  proof  of  notice  &c.  signed  by  the  assignee. 

The  disregarding  of  variances  on  the  trial  of  a  cause,  is,  in  general,  matter  resting 
in  discretion,  upon  which  a  bill  of  exceptions  will  not  lie. 

At  common  law,  the  assignee  of  a  policy  of  insurance  cannot  sue  upon  it  in  his 
own  name. 

Where,  however,  the  charter  of  an  insurance  company  provided  that,  in  case  of  an 
alienation  of  the  property  insured  by  sale  or  otherwise,  the  policy  should  be  void, 
but  that  the  grantee  or  alienee,  having  the  policy  assigned  to  him,  might  have 
the  same  ratified  and  confirmed  for  his  use,  by  the  consent  of  the  company,  within 
thirty  days  next  after  such  alienation ;  and  that  this  should  entitle  him  to  all  the 
rights  and  privileges  of  tho  party  originally  insured :  Held,  that  a  ratification 
and  confirmation  pursuant  to  the  charter,  gave  the  assignee  the  right  to  eue  upon 
the  policy  in  his  own  name ;  and  that  no  action  would  lie  in  the  name  of  tho 
assignor. 

Whether,  under  such  a  charter,  a  ratification  and  confirmation  by  the  company 
after  thirty  days  from  the  time  of  alienation,  will  render  the  policy  valid,  quere. 

ASSUMPSIT,  tried  at  the  Niagara  circuit,  in  March,  1842,  be- 
fore DAYTON,  C.  Judge.  The  action  was  on  a  fire-policy,  da- 
ted November  25th,  1839,  by  which  the  defendants  undertook 
and  promised  to  insure  Charles  J.  Mann,  (the  nominal  plain- 
tiff,) on  goods  in  his  store  at  Lockport,  to  the  amount  of  $2000, 
for  the  term  of  five  years.  The  goods  having  been  destroyed  by 
fire,  this  action  was  brought  for  the  benefit  of  one  John  Wilson, 
to  whom  the  policy  had  previously  been  assigned  as  hereinafter 
stated. 

The  defendants'  charter  (Stat.  c/1836,  p.  267,  $  3,)  adopt- 
ed the  provisions  contained  in  the  charter  of  the  Jefferson 
County  Mutual  Insurance  Company,  (id.  p.  42,)  the  seventh 
section  of  which  is  as  follows  :  "  When  any  property  insured 
with  this  corporation  shall  be  alienated  by  sale  or  otherwise, 
the  policy  shall  thereupon  be  void,  and  be  surrendered  to  the 
directors  of  said  company  to  be  cancelled ;  and  upon  such  sur- 


188  CASES  IN  THE  SUPREME  COURT. 

Mann  t>.  The  Herkimer  County  Mutual  Insurance  Company. 


render,  the  assured  shall  be  entitled  to  receive  his  deposite 
notes,  upon  the  payment  of  his  proportion  of  all  losses  and 
expenses  that  have  accrued  prior  to  such  surrender  :  but  the 
grantee  or  alienee,  having  the  policy  assigned  to  him,  may 
have  the  same  ratified  and  confirmed  to  him  for  his  own  prop- 
er use  and  benefit,  upon  application  to  the  directors,  and  with 
their  consent,  within  thirty  days  next  after  such  alienation,  on 
giving  proper  security  to  the  satisfaction  of  said  directors,  for 
such  portion  of  the  deposite  or  premium  note  as  shall  remain 
unpaid ;  and  by  such  ratification  and  confirmation,  the  party 
causing  such  security  to  be  given,  shall  be  entitled  to  all  the 
rights  and  privileges,  and  be  subject  to  all  the  liabilities,  to 
which  the  original  party  to  whom  the  policy  issued  was  enti- 
tled under  this  act." 

The  declaration  averred  an  assignment  of  the  policy  to  John 
Wilson,  and  notice  of  the  assignment  to  the  defendants,  who 
manifested  their  consent  in  writing  by  an  endorsement  on  the 
policy.  It  was  also  averred  that  the  plaintiff,  at  the  time  of 
the  loss,  was  interested  in  the  goods  insured  to  the  full  amounf 
of  the  sum  named  in  the  policy  j  that  the  loss  happened  on 
&c,  j  that  the  plaintiff  gave  notice  of  the  loss  &c. ;  that  an  ac 
count  of  the  loss  was  afterward  made  out  and  signed  by  the 
plaintiff,  verified  by  his  oath,  and  furnished  to  the  defendants 
The  case  made  by  the  plaintiff  at  the  trial  was  substantially 
this  :  The  goods  covered  by  the  policy  were  sold  by  Mann 
the  insured,  to  the  said  Wilson,  on  the  23d  of  June,  1840.  On 
the  4th  of  September  following,  Mann  assigned  the  policy  to 
Wilson,  and,  on  the  7th  of  the  same  month,  the  defendants  en- 
dorsed upon  the  policy  a  written  consent  to  the  assignment  j 
Wilson  at  the  same  time  giving  them  a  new  premium  note, 
which  they  still  hold.  The  fire  by  which  the  goods  were  de- 
stroyed occurred  on  the  26th  of  September,  1840.  Wilson 
thereupon  gave  notice  of  the  loss  to  the  defendants  ;  and  after- 
wards made  out  an  account  of  the  same,  verified  it  on  oath,  and 
served  this  upon  the  defendants.  The  notice  of  loss  was  sign- 
ed by  Wilson,  and  he  made  the  affidavit  verifying  the  account. 


ALBANY,  JANUARY,  1843. 


Mann  r.  The  Herkimer  County  Mutual  Insurance  Company. 

Wilson  stated  in  the  affidavit  that  he  was  sole  owner  of  the 
goods  when  they  were  destroyed.  The  defendants'  counsel,  on 
these  papers  being  offered  in  evidence,  objected  that  they  were 
not  admissible  under  the  declaration  j  that  they  were  the  acts  of 
Wilson,  and  the  declaration  described  them  as  the  acts  of  the 
plaintiff — i.  e.  of  Mann.  The  circuit  judge  overruled  the  ob- 
jection, and  the  defendants'  counsel  excepted.  The  plaintiff 
gave  in  evidence  a  letter  written  by  the  secretary  of  the  de- 
fendants to  Wilson,  offering  to  pay  for  the  goods  lost  on  ascer- 
taining the  amount,  and  suggesting  a  mode  of  ascertainment. 
The  letter  was  dated  February  5th,  1841.  This  was  objected 
to  as  irrelevant,  and  because  it  did  not  appear  that  the  secreta- 
ry had  authority  to  write  it ;  but  the  objection  was  overruled, 
and  the  defendants'  counsel  excepted. 

When  the  plaintiff  rested,  the  defendants'  counsel  moved  for 
a  nonsuit  on  the  following,  among  other  grounds,  viz. :  1.  That, 
by  the  sale  of  fhe  goods,  the  policy  became  and  remained  void, 
not  having  been  ratified  by  the  defendants  within  thirty  days 
thereafter  ;  2.  That  if  the  policy  was  not  void,  the  action 
should  have  been  brought  in  the  name  of  Wilson.  The  circuit 
judge  denied  the  motion,  and  the  defendants'  counsel  excepted. 
The  jury  rendered  a  verdict  for  the  plaintiff  of  $1500,  and  the 
defendants  now  moved  for  a  new  trial  on  a  bill  of  exceptions. 

A.  Gardiner,  for  the  defendants. 
JV*.  Hill,  Jr.  for  the  plaintiff. 

By  the  Court,  COWES,  J.  Admitting  that  the  action  was 
properly  brought  in  Mann's  name,  and  that  the  policy  is  valid 
notwithstanding  the  sale  of  the  23d  of  June,  there  would  per- 
haps be  no  serious  difficulty  in  the  way  of  a  recovery.  The 
averment  of  preliminary  proofs  having  been  furnished  by  the 
plaintiff,  and  even  signed  by  his  name,  might  possibly  be  satis- 
fied, though  this  is  doubtful,  by  considering  Wilson  the  sub- 
stantial plaintiff,  and  therefore  within  the  terms  of  the  aver- 


190       CASES  IN  THE  SUPREME  COURT, 

Mann  ».  The  Herkimer  County  Mutual  Insurance  Company. 

ment.  (Cornell  v.  Le  Roy,  9  Wend.  163,  4,  5.)  At  any  rate, 
I  should  think  we  might  overlook  the  variance  as  being  amend- 
able. (Mappa  v.  Pease,  15  id.  672.)  The  disregarding  of 
variances  at  the  circuit  is  the  subject  of  discretion,  upon  which 
a  bill  of  exceptions  will  not  lie.  (Id.  673.) 

But  the  action  is  brought  in  the  name  of  Mann,  although 
previous  to  the  loss,  he  had  sold  the  subject  of  insurance  to 
Wilson,  and  had  assigned  the  policy  to  the  same  person,  the 
latter  act  having  been  approved  by  the  company.  It  is  there- 
fore objected,  first,  that  if  any  action  will  lie,  it  should  have 
been  brought  in  the  name  of  the  assignee  j  but,  secondly,  that 
none  will  lie  in  the  name  of  any  one,  the  assured  having  parted 
with  all  his  interest,  and  the  requisite  steps  not  having 
been  taken  to  renew  the  policy  conformably  to  the  statute  of 
incorporation. 

1.  Independently  of  the  7th  section  of  that  statute,  the  poli- 
cy, being  a  mere  chose  in  action,  was  not  assignable  at  law  in 
any  form.  (16  Wend.  397  ;  3  Hill,  88  ;  9  Wend.  409  ;  5 
id.  200,  203.)  But  the  7th  section  declares  that  though,  when 
the  property  insured  shall  be  alienated  by  sale  or  otherwise 
the  policy  shall  be  void,  yet  the  alienee,  having  the  policy 
assigned  to  him,  may,  notwithstanding,  cause  it  to  be  ratified 
for  his  own  use  and  benefit,  by  consent  of  the  directors,  within 
thirty  days  after  the  alienation,  on  giving  approved  security  for 
what  may  be  due  on  the  premium  note.  It  then  declares 
that  he  shall  be  entitled  to  all  the  rights  and  privileges  &c.,  to 
which  the  assured  was  entitled.  One  of  these  rights  is  to  sue 
in  his  own  name.  Having  parted  with  all  his  interest  both  in 
the  subject  matter  and  policy  j  the  company,  moreover,  which 
is  the  debtor,  having  become  a  party ;  the  whole  is  nearly 
equivalent  to  a  promise  upon  a  new  consideration  to  pay  the 
amount  of  any  subsequent  loss  to  the  assignee.  If  such  a 
transaction  would  not  give  the  assignee  a  right  to  sue  in  his 
own  name  at  common  law,  and  even  divest  the  right  any  longer 
to  use  that  of  the  assignor,  yet  the  words  of  the  statute  are,  I 
think,  equivalent  to  an  express  declaration  that  the  assignee 


ALBANY,  JANUARY,  1843.  jgj 

Mann  r.  Hie  Herkimer  County  Mutual  Insurance  Company. 

may  sue  in  his  own  name.  The  demand  becomes,  both 
at  law  and  in  equity,  transferred.  The  consequence  is, 
that  the  plaintiff  Mann  should,  in  the  case  before  us,  have 
been  nonsuited  upon  the  ground  that  he  had  ceased  to  hold 
the  legal  interest.  (See  Granger  v.  The  Howard  Insur- 
ance Co.  ofN.  Y.y  5  Wend.  200,  203,  and  Ferris  v.  The  North 
American  Insurance  Co.  I  Hill,  71.)  The  effect  is,  perhaps, 
more  correctly  expressed  by  saying,  that  a  ratification  and 
confirmation  of  the  policy  for  the  assignee's  own  use  and  bene- 
fit, in  the  language  of  the  7th  section,  renders  it  a  policy  or 
obligation  directly  to  the  assignee  himself.  He  thenceforth 
claims  as  the  assured  ;  not  as  a  mere  assignee. 

2.  So  far,  I  have  proceeded  on  the  assumption  that  all  the 
requisite  forms  for  transferring  the  legal  interest  were  complied 
with  ;  and,  among  other  things,  that  the  company  had  actually 
ratified  the  sale  within  thirty  days  from  the  23d  of  June  ;  or 
afterwards  did  what  was  equivalent.  There  is  no  pretence, 
from  any  direct  proof,  that  the  company  actually  confirmed  the 
policy  within  the  thirty  days ;  nor  indeed  could  they  do  so. 
Such  ratification,  to  be  available,  must  have  been  founded 
on  the  assignment  of  the  policy,  which  was  not  made  till 
more  than  sixty  days  after  the  sale.  No  effectual  ratification 
within  the  thirty  days  can  therefore  be  inferred  from  the  letter 
of  the  assistant  secretary,  admitting  he  had  authority  to  write 
the  letter. 

It  is  somewhat  difficult  to  perceive  why  the  thirty  days 
should  have  been  mentioned  by  the  statute  as  a  limitation  to 
which  the  assignee  and  underwriters  must  confine  themselves. 
The  statute  seems  to  impose  no  obligation  on  the  company  to 
renew  the  policy,  though  it  should  be  presented,  with  the  as- 
signment, immediately  after  the  sale.  It  declares  the  policy 
void  and  subject  to  cancellation  by  reason  of  the  sale  ;  but  that, 
by  taking  an  assignment,  the  vendee  may  have  a  renewal  in 
his  own  right  within  thirty  days  fiom  the  time  of  such  sale. 
It  struck  me,  at  first,  that  the  time  was  intended  for  the  benefit 
of  one  or  both  of  the  parties  to  the  transaction,  and  that  it 


192  CASES  IN  THE  SUPREME  COURT. 

Mann  v.  The  Herkimer  County  Mutual  Insurance  Company. 

might  therefore  be  waived,  as,  in  this  view,  it  undoubtedly 
was,  by  the  act  of  taking  a  new  premium  note  from  the  as- 
signee, and  the  written  consent  of  the  7th  of  September.  Had 
the  statute  been  mandatory  upon  the  company,  to  confirm  upon 
request  within  thirty  days,  they  might  clearly  have  waived  the 
restriction ;  for  the  limitation  would  obviously  have  been  to 
effectuate  their  own  safety  and  convenience.  Quilibet  potest 
renunciare  juri  pro  se  introducto.  But  that  is  not  so.  If  the 
legislature  did  not  mean  to  allow  a  departure  from  the  com- 
mon law  rule  unless  such  departure  be  within  thirty  days,  the 
restriction  must  be  regarded  as  one  of  general  policy,  incapable 
of  being  waived.  The  law  might  have  provided  that  a  prom- 
issory note  should  not  be  negotiated  after  thirty  days  from  its 
date,  had  the  legislature  thought  fit.  In  this  view,  the  limita- 
tion of  time  forms,  as  the  counsel  for  the  defendants  contended, 
an  indispensable  condition. 

It  is  not  necessary,  however,  to  pass  upon  the  question 
whether  there  was  a  legal  assignment  or  not.  If  there  was, 
we  have  seen  that  Mann  was  an  improper  party.  If  not,  the 
policy  was  avoided  by  the  sale,  and  no  action  lies  in  any  form, 
unless  the  transactions  between  Wilson,  the  assignee,  and  the 
company,  raised  an  original  obligation  of  insurance  to  him  in- 
dependently of  the  statute.  In  any  view  of  the  case,  there 
must  be  a  new  trial. 

New  trial  granted. 


ALBANY,  JANUARY,  1843.  193 


Miner  c.  Hoyt 


MINER  vs.  HOYT. 

Under  the  New-York  city  mechanics'  act,  (Sets.  L.  of  '30  p .  412,  and  Sett.  L. 
'32,  p.  181,)  the  claimant  cannot  acquire  a  lien  on  unliquidated  damages  which 
have  accrued  to  the  builder  by  reason  of  a  violation  of  the  contract  on  the  part 
of  the  owner ;  but  the  lien  is  restricted  to  such  funds  as  arc  due  or  to  bccom* 
due  for  actual  performance. 

In  an  action  under  the  above  law,  the  owner  is  entitled  to  be  allowed  for  all  de- 
mands he  held  against  the  builder  at  the  time  the  attested  account  waa  served, 
provided  they  be  such  as  might  have  been  set  off  in  an  action  brought  by  the 
builder  himself. 

Otherwise,  if  the  set-off  be  shown  to  have  been  created  in  fraud  of  the  plaintiff's  lien. 
Per  Co  WEN,  J. 

The  plaintiff  in  such  action  cannot  use  the  builder  as  a  witness,  he  being  interested. 

A  release  to  the  builder,  sufficient  to  obviate  the  objection  as  to  his  interest,  would 
necessarily  extinguish  the  plaintiff's  right  of  action  ;  and  this,  notwithstanding 
an  express  declaration  in  the  release  that  such  was  not  the  intent  Per  COWEX,  J. 

Where  a  release  of  this  character,  however,  is  given  by  the  plaintiff  at  the  trial,  the 
defendant  can  only  avail  himself  of  the  fact  by  pleading  it  puis  darrein  continu- 
ance. Semble  ;  per  COWEN,  J. 

In  general,  the  assignee  of  a  demand  takes  subject  to  every  equitable  defence  exist, 
ing  against  it  in  the  hands  of  the  assignor.  Per  COWEN,  J. 

Semble,  that  this  rule  applies  even  to  cases  where  the  assignment  is  absolute  and 
operates  a  transfer  of  the  legal  as  well  as  equitable  interest  in  the  demand. 

Otherwise,  as  to  bills  of  exchange  and  promissory  notes,  transferred  to  a  bonajide 
holder.  Per  COWEN,  J. 

ON  error  from  the  New- York  common  pleas.  A.  Hoyt  sued 
Miner  under  the  New- York  city  mechanics'  act,  (Stat.  of  1830, 
p.  412,  and  Stat.  of  1832,  p.  181,)  for  work  done  by  said 
Hoyt  in  building  a  house,  viz.  No.  157  Henry-street.  The 
work  in  question  was  done  for  D.  Hoyt,  the  contractor,  be- 
tween the  3d  of  February,  1839,  and  the  15th  of  April  follow- 
ing ;  and  the  attested  account  of  A.  Hoyt  was  served  upon 
Miner  on  the  29th  of  April,  1839. 

The  contract  between  Miner  and  D.  Hoyt  was  entered  into 

August  1st,  1838,  and  by  its  terms  the  house  was  to  be  finished 

February  1st,  1839  •  but  on  the  21st  of  November,  1838,  the 

parties  extended  the  time  for  finishing  the  house  to  the  25th  of 

.  VOL.  IV,  25 


194  CASES  IN  THE  SUPREME  COURT. 

Miner  e.  Hoyt. 

April,  1839.  The  contract  bound  Miner  to  pay  D.  Hoyt  for 
building  the  house  the  sum  of  $5564,34,  as  follows  :  "  When 
the  first  tier  of  beams  are  laid  and  front  and  rear  walls  put  up, 
$500.  When  the  third  tier  of  beams  are  laid  and  walls  put  up, 
$500.  When  the  roof  is  tinned  and  completed,  $700.  When  the 
scratch  coat  is  on  and  floors  laid,  $700.  When  the  brown  coat 
is  on,  sashes  glazed  and  put  in,  &c.  $700.  When  the  walls, 
ceilings,  cornices  and  all  the  hard  finish  is  on,  &c.  $900, 
When  the  window  shutters  and  doors  are  all  hung,  &c.  $300  j 
and  the  balance  when  the  building  is  all  completed." 

The  above  sums  included  the  mason  work,  a  part  of  which 
was  a  party  wall  to  be  appraised  by  disinterested  persons  and 
paid  for  by  D.  H3yt.  This  was  afterwards  appraised  at  $312. 
The  mason  work  was  valued  by  D.  Hoyt  and  Miner  at  $3350. 
One  Pierson  undertook  to  do  that  j  and  all  three  agreed  that 
Miner  should  pay  Pierson  directly,  thus  :  "  When  the  first  tier 
of  beams  are  on,  front  and  rear  up,  $300.  When  the  third  tier 
of  beams  are  on  and  walls  up,  $300.  When  the  roof  is  on 
and  tinned,  $400.  When  the  scratch  coat  is  on,  $400.  When 
browned,  $400.  When  yard  finished,  $400.  The  balance 
when  house  is  finished,  $1150."  On  the  15th  of  August,  1838, 
D.  Hoyt  gave  Pierson  an  order  on  Miner  pursuant  to  the  above 
arrangement.  Pierson  assumed  the  price  of  the  party  wall, 
and  gave  his  note  to  Miner  for  it  according  to  the  appraisement. 
The  note  bore  date  October  3d,  1838.  On  the  15th  of  April, 
1839,  the  building  had  progressed  to  that  stage  when  the  sixth 
instalment,  specified  in  the  contract  between  D.  Hoyt  and 
Miner,  became  due,  viz.  the  $900  payment.  Some  work  had 
been  done  also  towards  the  seventh  payment.  The  building 
then  took  fire  and  was  partially  destroyed  j  whereupon  a  disa- 
greement arose  between  D.  Hoyt  and  Miner,  in  consequence 
of  which  the  former  ceased  to  work,  and  Miner  had  the  build- 
ing finished  by  others.  Evidence  was  given  tending  to  show 
D.  Hoyt's  readiness  to  go  on  and  complete  the  building  by  the 
extended  time,  (25th  of  April,)  and  that  Miner  refused  to  al- 
low him  to  do  so. 


ALBANY,  JANUARY,  18  U.  195 

Miner  v.  Hoyt. 

It  was  not  disputed  that,  when  the  fire  happened,  Miner  had 
paid  to  D.  Hoyt  and  Pierson  the  sum  of  $3770  on  the  building 
contract.  Miner  also  claimed  to  be  allowed,  either  as  payment 
or  by  way  of  set-off,  the  $312  note  given  by  Pierson  fox  the 
estimated  value  of  the  party  wall.  He  also  claimed  to  have 
allowed  him  a  due-bill  purporting  to  have  been  given  him  by 
D.  Hoyt  for  $78  money  lent,  and  dated  March  30,  1839. 

On  all  the  points  in  dispute,  D.  Hcyt  himself  was  an  impor- 
tant witness  for  the  plaintiff  in  the  court  below,  A.  Hoyt.  On 
his  being  offered,  he  was  objected  to  by  the  defendant,  Miner ; 
whereupon  the  plaintiff  executed  a  release.  The  release  was 
of  all  demands  &c.  and  all  personal  liability,  but  declared  it  to 
be  understood  that  the  release  should  not  operate  to  prejudice  the 
plaintiff's  claim  in  this  suit.  The  defendant  next  objected  that 
the  release,  if  operative  to  any  extent,  discharged  the  plaintiff's 
cause  of  action  j  and  that,  if  not,  it  was  insufficient  to  restore 
the  witness'  competency.  The  court  decided  that  the  witness 
might  be  sworn. 

Much  testimony  was  given  and  various  questions  raised  in 
the  court  below,  not  necessary  to  be  here  stated.  The  court 
charged,  among  other  things,  that  if  the  due-bill  for  $78  was 
given  upon  a  mere  loan,  it  could  not  be  allowed  the  defendant, 
either  as  so  much  paid  D.  Hoyt,  or  as  a  set-off;  otherwise,  if 
there  had  been  an  agreement  between  D.  Hoyt  and  the  defen- 
dant that  it  should  apply  as  payment.  The  court  further  in- 
structed the  jury  to  disallow  the  defendant's  claim  in  respect  to 
the  Pierson  note  of  $312.  Exceptions  were  taken  to  the  charge, 
and  also  to  the  decision  admitting  D.  Hoyt  as  a  witness.  Ver- 
dict and  judgment  for  the  plaintiff  below  j  whereupon  Miner, 
the  defendant,  brought  error. 

C.  De  Witt)  for  the  plaintiff  in  error. 

P.  A.  Cowdrey,  for  the  defendant  in  error. 

By  the  Court,  COWEN,  J.  Several  of  the  questions  addressed 
to  the  witnesses  appear  to  have  been  allowed  by  the  court  be- 


196  CASES  IN  THE  SUPREME  COURT. 

Miner  v.  Hoyt. 

low  on  the  assumption  that  the  plaintiff  might  fix  a  lien  on  the 
unliquidated  damages  supposed  to  be  due  from  the  defendant,  in 
consequence  of  his  preventing  D.  Hoyt's  going  on  after  the 
fire  and  completing  the  contract.  Perhaps  most  of  them 
might  have  been  relevant,  if  such  damages  can  be  said  to  have 
been  in  issue.  But  we  think  they  were  not.  We  are  of 
opinion  that  the  fund  contemplated  by  the  statute  is  confined 
to  what  is  due  or  to  become  due  for  actual  performance  by  the 
contractor.  (See  3  R.  S.  273,  2rf  ed.,  act  of  1830 ;  and  Sess. 
Laws  of  1832,  p.  181.)  The  owner  is  to  retain  out  of  his  sub- 
sequent payments  to  the  contractor ;  (act  of  1830,  §  1  •)  and 
the  recovery  of  the  plaintiff  is  "  to  the  extent  in  value  of  any 
balance  due  by  the  owner  to  his  contractor  under  the  contract 
with  him"  at  the  time  of  the  notice  first  given  by  the  plaintiff, 
"  or  subsequently  accruing  to  such  contractor  under  the  same." 
It  is  the  balance  due,  or  the  balance  subsequently  accru- 
ing due.  (Id.  §  4.)  The  demand  must  in  general  be  of  a  na- 
ture for  which  an  action  of  debt  or  indebitatus  dssumpsit  would 
lie.  At  least,  it  must  be  due  as  a  consequence  of  actual  per- 
formance. The  claim  arising  from  a  refusal  to  allow  perform- 
ance is  of  a  nature  entirely  different.  There  is  not  in  such 
case  any  thing  due  by  the  owner  under  the  contract.  It  is  de- 
parted from  and  violated,  for  which  special  damages  are  to 
be  recovered,  unmeasured  and  even  more  uncertain  in  their 
amount  than  those  in  many  actions  brought  for  a  mere  wrong. 
We  are  also  of  opinion  that  the  sum  due  for  money  lent 
from  D.  Hoyt,  the  contractor,  to  the  defendant  below,  and  of- 
fered as  a  set-off,  was  improperly  excluded.  The  assignee  of 
a  demand  takes  subject  to  every  equitable  defence  existing 
against  it  while  in  the  hands  of  the  assignor.  I  shall  presently 
examine  whether  this  may  not  be  considered  the  rule  even  in 
respect  to  demands,  the  legal  interest  whereof  is  transferred  by 
absolute  assignment ;  though  I  admit  that  promissory  notes  and 
bills  of  exchange  are  exempt  frorr.  the  rule  when  sold  bona 
fide,  by  reason  of  their  peculiar  privilege  as  commercial  paper. 
A  proceeding  under  the  statute  certainly  confers  upon  the  me- 


ALBANY,  JANUARY,  1843. 


BBJHBT  B.   Hojt. 


chanic  or  material-man  no  greater  rights  than  those  of  an  abso- 
lute assignee. 

The  claim  to  set  off  the  note  of  $312  against  Pierson,  stands 
upon  a  similar  principle.  By  arrangement  between  him,  D. 
Hoyt  and  the  defendant,  Pierson  had,  in  respect  to  the  mason 
work,  taken  the  place  of  Hoyt  as  contractor.  The  contract 
for  that  work  stood  between  Pierson  and  the  defendant.  By 
arrangement  he  had,  pro  tanto,  taken  the  place  of  Hoyt ;  and 
the  equities  are  to  be  considered  between  him  and  the  de- 
fendant. 

The  question  would  have  been  different  if  the  set-oflfe  had 
been  created  in  fraud  of  the  plaintiff's  lien  ;  but  there  is  no  pre- 
tence of  that  being  so. 

The  court  below  charged,  and  it  is  not  denied  that,  by  ex- 
press agreement  between  the  contractor  and  owner,  these  mat- 
ters of  set-off  might  have  been  applied.  The  equity  is  the 
same,  whether  there  was  an  agreement  or  not.  It  cannot  be 
said,  in  an  equitable  sense,  that  there  is  a  sum  due  from  A.  to 
B.  under  a  contract,  when  B.  owes  A.  a  sum  equal  to  the 
former.  The  statute  of  set-off,  as  it  was  worded  before  the 
late  revisal,  spoke  of  mutual  debts  only  between  the  immedi- 
ate parties  to  the  suit ;  but  it  was  early  held  that  it  compre- 
hended, in  spirit,  a  debt  due  to  the  defendant  from  the  party 
under  whom  the  plaintiff  claimed.  True,  a  balance  could  not 
be  certified  against  the  plaintiff  in  the  latter  case  ;  but  the  set- 
off  was  received  to  operate  defensively  to  the  extent  of  the 
plaintiff's  claim.  In  G'Callaghan  v.  Sawyer ,  (5  John.  Rep. 
118,)  the  plaintiff  was  assignee,  by  endorsement,  of  a  promisso- 
ry note ;  and  the  note  being  endorsed  after  it  was  due,  this 
court  reversed  the  judgment  of  the  common  pleas,  because  it 
had  excluded  from  the  defence  matter  of  set-off  against  the 
payee.  Nearly  twenty  years  after,  that  case  was  overruled  in 
Johnson  v.  Bridge,  (6  Cowen,  693.)  But  this  decision,  though 
affirmed  by  the  court  of  errors,  was  maintained  by  a  tie  vote ; 
(Bridge  v.  Johnson,  5  Wend.  342  ;)  and  in  Driggsv.  Rockwell, 
(11  id.  504,)  it  may,  I  think,  be  considered  as  overthrown. 


198  CASES  IN  THE  SUPREME  COURT. 

Miner  ».  Hoyt. 

The  late  case  in  the  king's  bench  of  Burrough  v.  Moss,  (10 
Barn,  fy  Cress.  558,)  agrees  with  that  cited  from  my  reports. 
It  was  not  decided,  however,  without  much  hesitation,  and  is 
in  turn  I  think  shown  to  be  very  questionable  in  principle,  by 
the  learned  opinion  of  Ruffin,  Ch.  J.  in  Haywood  v.  M'Nair, 
(2  Dev.  $*  Bat.  283.)  But  suppose  the  question  to  be  doubt- 
ful, where  the  debt  is  absolutely  assigned  j  suppose  the  assignor 
can  evade  a  legal  defence  by  transferring  the  debt  to  another  ; 
there  is  a  feature  in  the  case  at  bar  which  brings  it  within  the 
narrowest  ground  to  which  that  of  Driggs  v.  Rockwell  can  be 
reduced.  The  judges  who  delivered  opinions  in  that  case,  (the 
chancellor  and  senator  Beardsley,)  both  agreed  that  where, 
notwithstanding  the  assignment,  the  assignor  still  continues  the 
real  plaintiff,  the  set-off  is  receivable.  There  the  note  was  as- 
signed as  a  collateral  security,  and  the  chancellor  said  the  prin- 
cipal debtor  was  the  real  plaintiff.  The  demand  holden  by  the 
plaintiff  below  in  the  principal  case  was  no  more  than  a  collat- 
eral security  for  his  demand  against  D.  Hoyt.  A  recovery 
will,  if  followed  by  satisfaction,  satisfy  the  debt  of  D.  Hoyt,  as 
it  would  have  done  the  principal  debt  in  Driggs  v.  Rockwell. 
The  chancellor  had  before  expressed  a  similar  opinion  in  Bridge 
v.  Johnson. 

The  objection  to  the  reception  of  D.  Hoyt  as  a  witness  was 
clearly  well  founded,  unless  the  release  enured  as  a  discharge 
of  the  witness ;  in  which  latter  view  it  would  be  still  more  fa- 
tal to  the  plaintiff's  demand.  The  effect  of  his  failure  to  show 
a  fund  adequate  to  the  payment  of  his  demand,  would  be  to 
bar  the  witness,  pro  tanto,  in  any  suit  he  might  afterwards 
bring  in  his  own  name  for  the  same  fund.  This  suit  was  liti- 
gated with  full  notice  to  him,  which  the  owner  is  always  bound 
in  such  case  to  give  the  contractor.  (Act  of  1830,  §  2  ;  and 
see  Collins  v.  Ellis,  21  Wend.  405  to  407.) 

On  the  other  hand,  most  clearly  the  debt  due  from  D.  Hoyt 
to  the  plaintiff  was  vital  to  his  claim  against  the  defendant. 
The  statute  gives  it  as  a  consequence  of  that  debt.  The  claim 
is  a  mere  incident,  like  a  guaranty.  A  release  of  the  principal 


ALBANY,  JANUARY,  1848.  jgg 

Miner  t.  Hoyt 

necessarily  discharges  the  surety.  True,  the  legal  effect  of 
a  release  may  sometimes  be  qualified.  A  creditor  releasing 
one  of  two  joint  debtors  may  restrict  its  operation  in  such  a 
a  way  that  it  shall  not  discharge  both  j  but  there  the  debt  may 
remain  as  to  one,  though  gone  as  to  the  other,  if  it  be  not  ac- 
tually paid.  In  the  principal  case,  the  creditor  sought  to  en- 
force the  collateral  security  after  the  principal  debt  was  dis- 
charged, which  is  contrary  to  the  nature  of  things.  The  case 
is  like  a  grant  of  the  whole  subject  matter,  declaring  that  ii 
shall  not  operate  according  to  its  necessary  legal  effect.  The 
intent  to  discharge  D.  Hoyt  is  plain  on  the  face  of  the  in- 
strument ;  and  words  are  used  entirely  adequate  to  that  effect. 
Suppose  a  reversioner  to  give  his  tenant  an  absolute  deed  of  bar- 
gain and  sale,  proviso  that  it  shall  not  have  the  effect  to  dis- 
charge the  rent ;  would  either  the  tenant  or  his  surety  for  the 
rent  be  longer  holden  ?  It  seems  to  me  that  the  weight  of  the 
argument  lies  on  this  side  of  the  case.  It  is  said  the  release 
was  given  after  the  action  was  commenced  ;  but  that  does  not 
alter  its  effect  in  the  abstract,  for  a  debt  may  be  as  well  released 
after  suit  brought  as  before.  Being  after  issue  joined,  indeed 
after  the  jury  were  empanneled,  it  was,  I  suppose,  necessary 
to  plead  the  release  puis  darrein  continuance.  (Chit.  PL 
658,  9,  Jim.  ed.  of  1840,  and  books  there  cited.)  Strictly, 
therefore,  the  objection  perhaps  could  not  avail  in  form  j  and 
it  may  be  conceded  that  the  witness  was  competent.  But  for 
the  other  reasons  mentioned,  we  are  of  opinion  that  the  judg- 
ment should  be  reversed. 

Judgment  reversed. 


200  CASES  IN  THE  SUPREME  COURT. 

Walrath  v.  Thompson. 


WALRATH  vs.  THOMPSON. 

A  written  guaranty  is  to  be  construed  by  the  same  rules  and  may  be  explained  by 
the  same  evidence  as  other  contracts.  Per  COWEN,  J. 

Where  the  guaranty  was  in  the  form  of  a  letter  from  the  defendant  to  the  plaintiff, 
thus :  "  As  there  was  no  time  set  for  the  payment  of  your  account,  and  Mr.  J 
thought  it  would  be  an  accommodation  to  him  to  have  you  wait  until  &c. ;  if 
that  will  answer  your  purpose,  I  will  be  surety  for  the  payment"  &c. :  Held,  that 
the  words  your  account  were  ambiguous,  and  that  parol  evidence  was  admissi- 
ble for  the  purpose  of  applying  them  to  an  account  of  J.  not  existing  when  the 
letter  was  written,  but  contracted  afterwards  on  the  faith  of  it. 

Had  the  guaranty  related  to  a  precedent  account  of  J.  with  the  plaintiff,  it  would 
have  been  within  the  statute  of  frauds,  and  void  for  not  expressing  a  consid- 
eration. Per  COWEN,  J. 

Independently  of  oral  explanation,  the  words  of  a  guaranty  must  be  construed 
most  strongly  against  the  guarantor.  Per  COWEN,  J. 

AssuMPSiTj  tried  at  the  Madison  circuit  in  September,  1841, 
before  GRIDLEY,  C.  Judge.  The  case  proved  at  the  trial  was 
this  :  One  Johnson,  desiring  a  credit  of  the  plaintiff  for  some 
iron  castings,  applied  to  him  for  that  purpose  in  the  spring  of 
1839.  A  conversation  ensued,  in  which  Johnson  stated  that 
he  would  get  the  defendant's  order  for  them.  The  plaintiff 
told  him  he  would  enquire  as  to  the  defendant's  responsibility  ; 
and  shortly  afterwards  Johnson  came  again  and  brought  a  let- 
ter from  the  defendant,  directed  to  the  plaintiff,  in  these  words  : 

"  May  21st,  1839. 
Mr.  D.  Walrath, 

Sir — Yours  of  the  17th,  to  Mr.  Johnson,  was  shewn  me  this 
morning,  and  as  there  was  no  time  set  for  the  payment  of  your 
account  and  Mr.  Johnson  thought  it  would  be  an  accommoda- 
tion to  him  to  have  you  wait  until  the  first  of  January  next,  if 
that  will  answer  your  purpose  I  will  be  surety  for  the  payment 
of  the  money  to  be  paid  at  that  time.  Amount,  $48,50. 

Yours  with  respect, 

'  D.  Thompson." 


ALBANY,  JANUARY,  1848.  £01 

Walrath  r.  Thompson. 

The  plaintiff,  on  the  receipt  of  this  letter,  delivered  castings 
to  Johnson  to  the  amount  of  about  $48,50,  and  took  his  note 
for  the  same  at  seven  months.  Intermediate  the  date  of  the 
letter  and  the  first  of  January  following,  Johnson  became  in- 
solvent ;  and  the  plaintiff,  having  waited  the  time  mentioned  in 
the  letter,  brought  this  action  to  enforce  the  defendant's  under- 
taking. The  circuit  judge  was  of  opinion  that  the  words  your 
account,  in  the  letter,  imported  a  precedent  account,  and  that 
the  defendant's  undertaking  was  therefore  void  for  not  express- 
ing a  sufficient  consideration.  He  accordingly  directed  a  non- 
suit ;  whereupon  the  plaintiff  excepted,  and  now  moved  for  a 
new  trial  on  a  bill  of  exceptions. 

D.  Brown,  for  the  plaintiff. 
J.  Watson,  for  the  defendant. 

By  the  Court,  Co  WEN,  J.  No  consideration  being  directly 
mentioned  in  the  letter,  which  (as  it  is  contended)  meant  a  pre*- 
cedent  account,  the  question  is  whether  it  can  be  sustained,  un- 
der the  circumstances,  as  a  valid  guaranty  consistently  with  the 
statute  of  frauds.  It  cannot,  if  the  words  your  account  neces- 
sarily mean  a  precedent  account.  If  they  should  be  under- 
stood to  mean  your  account  yet  to  be  made,  then  the  letter  was 
in  effect  a  common  order  for  the  prospective  delivery  of  goods  j 
and  the  defendant  is  clearly  liable.  I  am  of  opinion  that 
the  words  are  ambiguous,  and  therefore  open  to  explanation 
by  parol.  The  words  your  account  may  mean  either  your 
past  or  future  account ;  and  from  the  conduct  of  the  par- 
ties and  other  extrinsic  facts,  no  doubt  is  left  which  was  really 
intended.  In  Ilaigh  v.  Brooks,  (10  Molph.  if  Ellis,  309,) 
the  words  addressed  to  the  plaintiffs  were,  "  In  consideration  of 
your  being  in  advance  to  L.  in  the  sum  of  j£10,000,  for  the 
purchase  of  cotton,  I  do  hereby  give  you  my  guaranty  for  that 
amount  on  their  behalf."  It  was  held,  by  the  exchequer  cham- 
ber, that  the  guaranty  did  not  necessarily  imply  a  past  ad- 

VOL.  IV.  26 


202  CASES  IN  THE  SUPREME  COURT. 

Shepard  c.  Potter. 

vance  j  and  that  the  plaintiffs  might  show  on  the  trial  that 
future  advances  were  contemplated. 

The  case  is  in  point,  and  I  think  sustained  by  the  principle 
of  many  other  decisions.  Guaranties  must,  as  we  have  lately 
held  in  several  cases,  be  construed  by  the  same  rules  and  may 
be  explained  by  the  same  evidence  as  other  contracts.  There 
is  no  reason  for  any  distinction.  But  independently  of  oral 
explanation,  the  words  being  those  of  the  guarantor,  must  be 
taken  most  strongly  against  him. 

I  am  of  opinion  that  the  nonsuit  should  be  set  aside,  and  a 
new  trial  granted  ;  costs  to  abide  the  event. 

New  trial  granted. 


SHEPARD  vs.  POTTER. 

After  the  plaintiff  has  rested  his  cause,  it  is  in  the  discretion  of  the  court  whether 
ho  shall  bo  allowed  to  give  further  evidence  save  in  reply. 

What  shall  be  deemed  evidence  in  reply,  under  such  circumstances,  considered. 

The  plaintiff,  on  the  trial  of  a  cause,  having  announced  his  intention  of  resting,  the 
defendant  moved  for  a  nonsuit ;  whereupon  the  court  re-called  and  interrogated 
a  witness  of  the  plaintiff,  and  thus  drew  out  a  new  fact  tending  against  the  latter 
on  the  leading  point  in  dispute.  Held,  that  the  court  were  bound  to  hear  further 
testimony  on  the  part  of  the  plaintiff  in  reply,  and  that,  for  their  refusal  to  do 
BO,  error  would  lie. 

Whether  a  plaintiff  shall  be  allowed  to  depart  from  the  case  first  established  by 
him,  but  which  he  has  failed  to  sustain,  and  prove  a  new  and  incompatible  one, 
is  matter  resting  in  the  discretion  of  the  court  at  the  trial,  upon  which  error  will 
not  lie.  See  note  (a).  • 

ON  error  from  the  Erie  common  pleas.  Shepard  sued  Pot- 
ter before  a  justice,  in  trespass  for  entering  the  close  of  the  for- 
mer and  cutting  and  carrying  away  his  wheat.  Plea,  the  general 
issue.  The  justice  rendered  judgment  in  favor  of  Shepard  for 
$100,  besides  costs ;  whereupon  Potter  appealed  to  the  com- 
mon pleas.  On  the  trial  in  the  latter  court,  the  principal  point 
litigated  was,  as  to  the  plaintiff's  title  to  the  wheat.  The  wheat 


ALBANY,  JANUARY,  1842  203 

Shep&rd  t.  Potter. 

was  sowed  by  the  plaintiff  in  the  fall  of  1839,  on  a  fifteen  acre 
piece  of  land,  part  of  a  farm  then  in  his  possession  belonging 
to  one  Vanderventer.  In  the  spring  of  1840,  the  defendant 
went  into  possession  of  the  farm,  but  whether  he  acquired  pos- 
session of  the  fifteen  acres  or  not,  was  left  doubtful  upon  the 
evidence.  Swartz,  one  of  the  plaintiff's  witnesses,  testified  on 
his  cross-examination  that,  in  a  conversation  between  him  and 
the  plaintiff,  before  the  defendant  moved  into  the  house  on  the 
farm,  the  plaintiff  said  he  would  give  up  the  possession  of  the 
farm  to  the  defendant ;  and  that  after  Vanderventer  had  forbid- 
den the  plaintiff  to  harvest  the  wheat,  he  (the  plaintiff)  said  he 
would  be  willing  to  harvest  it  and  give  the  defendant  one  third. 
When  the  plaintiff  rested,  the  defendant  moved  for  a  nonsuit, 
on  the  ground  that  the  proof  showed  the  defendant  in  posses- 
sion of  the  farm.  The  court  intimated  an  opinion  that  the 
motion  should  prevail,  but  re-called  the  witness  Swartz,  who,  on 
being  further  examined  by  the  court,  testified,  that  when  the 
plaintiff  said  he  would  give  up  the  possession  of  the  farm  to  the 
defendant,  nothing  was  added  as  to  his  intent  to  reserve  the 
wheat.  The  plaintiff  thereupon  offered  to  call  witnesses  for 
the  purpose  of  showing  that,  during  the  summer  of  1840,  the 
defendant  had  repeatedly  declared,  on  different  occasions,  that 
the  wheat  belonged  to  the  plaintiff.  The  court  refused  to  hear 
the  witnesses,  on  the  ground  that  the  plaintiff  had  rested,  and 
thereupon  a  nonsuit  was  ordered.  The  plaintiff  excepted,  and, 
after  judgment,  sued  out  a  writ  of  error. 

/.  G.  Masten,  for  the  plaintiff  in  error,  insisted  that  the 
court  below  erred  in  refusing  to  hear  the  further  testimony  pro- 
posed by  the  plaintiff,  notwithstanding  he  had  previously  an- 
nounced his  intention  of  resting. 

H.  K.  Vielej  for  the  defendant  in  error,  said  this  was  matter 
resting  in  the  discretion  of  the  court  below,  upon  which  error 
would  not  lie.  He  cited  Cowen  fy  Hill's  Notes  to  Phil.  Ev. 
711  to  718  j  Cowen? s  Treat.  992,  2d  ed. 


204  CASES  IN  THE  SUPREME  COURT. 

Shepard  v.  Potter. 

By  the  Court,  COWEN,  J.     Whether  the  evidence,  when  the 
plaintiff  rested,  was  clearly  against  him  as  to  his  title,  may  be 
questionable ;  but  the  court  themselves  recalled  his  witness,  and 
made  it  a  degree  stronger  against  him.     That  was  a  breaking 
of  the  plaintiff's  rest.     He  might  have  been  willing  to  risk  his 
cause  as  the  proof  was  when  he  announced  that  he  should  stop ; 
and  the  court  would  then,  I  think,  have  been  right  in  not  al- 
lowing him  to  go  into  evidence  of  the  defendant's  admissions. 
But  their  own  examination  showed  an  implied  confession  by 
the  plaintiff  of  the  defendant's  title,  arising  from  the  omission 
of  the  former  to  assert  a  reservation  of  the  wheat  when  he  men- 
tioned giving  up  the  farm  to  the  defendant.     This  was  new  evi- 
dence for  the  defendant,  not  before  given.  To  rebut  it,  or  quali- 
fy its  force,  the  plaintiff  offered  to  prove  the  defendant's  admis- 
sions of  the  plaintiff's  title.     Even  supposing  his  case  to  have 
continued  closed,  it  is  doubtful  whether  he  had  not  a  right  to 
do  so  much  on  the  authority  of  the  very  books  which  the  de- 
fendant in  error  now  cites.     (Cowen's  Treat.  992;  Cowen  fy 
HilPs  Notes  to  Phil.  Ev.  711  to  718.)     It  seems  to  me  the 
evidence  was  a  direct  answer  to  what  the  court  had  called 
out.     This  was  the  same  in  effect  as  if  the  defendant  him- 
self had  recalled  the  witness.      In    Cowen  fy  HilVs  Notes 
to  Phil.   Ev.,  at  p.  712,  713,  the  ne  plus  ultra  of  strict- 
ness is  mentioned  as  exemplified  in  several  cases.     But  the  court 
below  were,  I  think,  still  more  stringent.     The  late  case  of 
Briggs  v.  Jlynsworth,  (2  Mood.  Sf  Rob.  168,)  seems  to  give  a 
rule  which  can  be  safely  and  conveniently  abided  by.     The 
plaintiff  in  that  case  proved  the  defendant  to  have  been,  at  the 
time  of  the  alleged  wrong,  near  the  place  where  it  was  com- 
mitted.    The  defendant  proved  an  alibi.     Then  the  plaintiff 
was  allowed  to  give  further  proof  that  the  defendant  was  near 
the  place  of  the  wrong.     Again,  in  Doe,  dem.  Gosley  v.  Gos- 
ley,  (id.  243,)  the  lessor  of  the  plaintiff  made  out  a  prima  fa- 
cie case  as  heir  at  law.     The  defendant  showed  a  will  taking 
the  lessor's  title  away.     The  plaintiff  was  allowed  to  show  a 
subsequent  will  devising  the  premises  to  his  lessor.     This  was 


ALBANY,  JANUARY,  1843.  2Q6 


Shcpard  ».  Potter. 


a  contradiction  of  the  defendant's  case,  the  second  will  being  a 
revocation  of  the  first. 

But  if  it  be  dangerous  to  interfere  on  error  with  discretion 
exercised  below  as  to  the  nature  of  the  evidence  to  be  answer- 
ed, as  compared  vrith  that  to  be  given  in  reply,  it  is  too  strong 
to  say  that  the  plaintiff's  case  was  closed  when  the  new  evi- 
dence was  offered.  The  court  took  it  up  and  continued  it,  by 
examining  his  own  witness.  No  case  gives  a  discretion  to  cut 
off  further  testimony,  if  it  be  pertinent,  unless  the  party  be  left 
to  the  evidence  as  it  stood  when  he  declared  his  case  closed. 

Without  finally  saying  whether  the  testimony  would  have 
been  proper  in  reply,  we  think  the  judgment  must  be  reversed 
on  the  ground  that  the  plaintiff's  case  was  open  when  he  offer- 
ed evidence  of  the  defendant's  admissions. 

Judgment  reversed. (a) 


(a)  In  Wright  v.  Henry,  (5f.  S.  Jan.  T.  1843,)  one  question  raised  was 
upon  the  right  of  a  plaintiff,  after  resting,  to  make  a  new  case,  different  from 
the  one  with  wnich  he  started.  There  the  plaintiff,  on  a  trial  in  the  common 
pleas,  put  in  evidence  a  deed  of  lands  absolute  on  its  face ;  and  at  a  subsequent 
stage  of  the  trial,  after  resting,  he  was  allowed  to  prove  that  the  deed  was 
Intended  as  a  mortgage.  It  clearly  appeared,  however,  that  his  offer  of  the  deed, 
fn  the  first  instance,  was  accompanied  by  a  proposition  to  show  the  same  fact ;  and 
this  the  supreme  court  regarded  as  a  decisive  answer  to  the  objection  taken.  "  But, 
if  otherwise,"  observed  Mr.  Justice  COWEN,  who  delivered  the  opinion,  "  the  ques- 
tion related  to  a  mere  point  of  practice  in  the  court  below.  Whether  a  court  will, 
at  the  trial,  allow  a  departure  from  the  case  first  established,  but  which  the  party 
has  failed  to  sustain,  and  admit  proof  of  a  new  one,  though  entirely  incompatible 
with  the  first,  is  a  question  resting  in  discretion.  It  is  not  revicwable  therefore  by 
writ  of  error.  The  courts  of  original  jurisdiction  should  be  left  to  consult  their  own 
convenience  upon  all  questions  of  this  character.  If  the  proposed  caw  be  not  in. 
admissible  under  the  pleadings,  a  bill  of  exceptions  will  not  lie." 


206  CASES  IN  THE  SUPREME  COURT. 

Bigelow  v.  Grannis. 


BIGELOW  and  others  vs.  GRANNIS. 

Where  the  plaintiff  replies  to  a  plea  of  infancy  that  the  defendant  ratified  the  seve- 
ral promises  &c.  after  attaining  to  the  age  of  21  years,  and  the  defendant  re- 
joins, taking  issue  upon  the  allegation,  the  plaintiff  is  prima  facie  entitled  to 
recover  upon  proof  of  a  new  promise,  without  showing  that  the  defendant  was  of 
age  at  the  time  of  making  it. 

ASSUMPSIT,  tried  at  the  Monroe  circuit,  in  April,  1842,  before 
DAYTON,  C.  Judge.  The  action  was  on  a  promissory  note,  dated 
May  6lh.  1838,  and  payable  on  the  1st  of  September  then  next. 
The  defendant  pleaded  infancy,  and  the  plaintiffs  replied  that,  af- 
ter the  defendant  had  attained  to  the  age  of  21  years,  to  wit,  on 
&c.,  at  &c.,  he  ratified  and  confirmed  the  several  promises  &c. 
The  defendant  rejoined,  taking  issue  upon  the  allegation  of  a 
new  promise.  On  the  trial,  evidence  was  given  that  soon  after 
the  note  fell  due,  the  .defendant  promised  to  pay  it.  The  de- 
fendant's counsel  moved  for  a  nonsuit,  on  the  ground  that  it 
did  not.  appear  the  defendant  was  of  age  when  the  promise  was 
made.  The  judge  denied  the  motion,  and  the  defendant's  coun- 
sel excepted.  The  jury  found  for  the  plaintiffs,  and  the  defen- 
dant now  moved  for  a  new  trial  on  a  bill  of  exceptions. 
• 

J.  H.  Martindale,  for  the  defendant. 

G.  H.  Mumfordj  for  the  plaintiffs. 

By  the  Court,  NELSON,  Ch.  J.  It  was  enough  for  the  plain- 
tiffs to  prove  a  new  promise,  without  showing  that  the  defen- 
dant was  of  age  at  the  time  of  making  it.  It  lay  upon  the  de- 
fendant, who  wished  to  take  advantage  of  it,  to  prove  the  fact 
of  infancy.  This  was  decided  upon  a  like  issue  in  Borthwick 
v.  Carruthers,  (1  T.  R.  648.) 

New  trial  denied. 


ALBANY,  JANUARY,  1843.  207 

The  People  e.  Hazard. 


THE  PEOPLE  vs.  HAZARD. 

% 

A  fine  imposed  npon  a  commissioned  officer  by  a  regimental  or  battalion  court-mar. 
tial  cannot  be  collected  by  an  action  of  debt  in  the  name  of  the  people,  but 
only  in  the  manner  pointed  oat  by  1  R.  S.  315,  316,  §  13  et  geq. — i.  e.  under  a 
warrant  issued  by  the  president  of  the  court 

ERROR  to  the  Yates  C.  P.  The  district  attorney  brought  an 
action  of  debt  in  the  court  below  in  the  name  of  the  people  of 
this  state  against  Hazard,  to  recover  a  fine  imposed  upon  the 
latter  by  a  regimental  court-martial,  for  delinquency  as  captain 
in  the  militia.  The  defendant  demnrred  to  the  declaration,  on 
the  ground  that  a  fine  imposed  by  a  regimental  court-mar- 
tial could  only  be  collected  by  warrant  issued  by  the  presi- 
dent of  such  court,  and  not  by  suit  in  the  name  of  the  people. 
The  court  below  gave  judgment  for  the  defendant,  whereupon 
the  plaintiffs  sued  out  a  writ  of  error. 

F.  M.  Haight,  for  the  plaintiffs  in  error. 
H.  Welles  f  for  the  defendant  in  error. 

By  the  Court,  NELSON,  Ch.  J.  By  the  act  of  1830  concern- 
ing the  militia  service  of  this  state,  it  is  provided  that,  all  courts- 
martial  for  the  trial  of  commissioned  officers  "  shall  consist  of 
seven  officers,  any  five  of  whom  shall  constitute  a  quorum  ; 
and  shall  be  ordered,  if  for  theUrial  of  officers  above  the  rank 
of  captain,  by  the  commanding  officer  of  division,  and  for  all 
other  officers,  by  the  commanding  officer  of  brigade."  (I  R.  S. 
307,  §  5.)  It  is  further  declared,  that  regimental  and  battalion 
courts-martial  shall  consist  of  three  members  to  be  appointed 
by  the  commandant  of  the  regiment  or  battalion.  (Id.  308, 
§  15.)  Power  is  then  given  to  the  latter  courts  (Id.  309,  $  22,) 
to  impose  such  fines  on  all  commissioned  officers  of  companies, 
non-commissioned  officers,  musicians  and  privates,  as  they  are 


208  CASES  IN  THE  SUPREME  COURT. 

The  People  e.  Hazard. 

subjected  to  in  the  first  article  of  the  seventh  title  of  the  same 
chapter.  On  referring  to  that  article  it  appears  that,  through 
some  omission,  commissioned  officers  of  companies  were  not  in- 
cluded in  the  specification  of  fines  for  the  delinquencies  there 
enumerated  ;  the  provision  being  confined  to  non-commissioned 
officers,  musicians  and  privates.  (Id.  312,  §  3 — 7.)  Fines 
imposed  by  a  regimental  or  battalion  court-martial  are  to  be 
collected  by  warrant  issued  by  the  president  j  and,  when  col- 
lected, are  to  be  paid  over  to  the  person  by  whom  the  court 
was  appointed,  and  applied  for  the  benefit  of  the  regiment  or 
battalion.  (Id.  315,  316,  §  13—25.)  But  all  penalties  and 
fines  imposed  by  courts-martial  upon  commissioned  officers — 
that  is,  by  division  and  brigade  courts-martial — are  to  be 
collected  by  the  attorney  general  or  district  attorney  of  the 
county,  and  paid  into  the  treasury  of  the  state.  (Id.  316, 
§24.) 

From  these  several  provisions  it  is  quite  obvious,  that  all 
fines  imposed  by  regimental  courts-martial  must  be  collected, 
if  at  all,  by  the  warrant  of  the  president ;  as  the  same  statute 
that  authorizes  the  imposition  of  the  fine,  prescribes  the  mode 
of  collection.  (Almy  v.  Harris •,  5  John.  R.  175  j  Stafford  v. 
Ingersol,  3  Hill,  41.)  • 

The  act  of  1835,  (Sess.  L.  o/>35,  p.  350,  §  21,)  amending 
the  third  section  of  the  seventh  title  above  mentioned,  supplied 
the  omission  in  the  revised  statutes,  already  adverted  to,  and 
subjected  commissioned  officers  under  the  degree  of  colonel  to 
trial  by  regimental  courts-martial  for  certain  delinquencies; 
and  of  course  brought  the  collection  of  fines  imposed  upon  them 
within  the  mode  prescribed  in  respect  to  other  fines  imposed 
by  these  courts.  The  provisions  of  the  statute  are  very  spe- 
cial and  express,  that  all  fines  imposed  by  regimental  courts- 
martial  shall  be  collected  by  warrant,  and  paid  over  for  the 
uses  of  the  regiment ;  and  as  the  act  of  1835  brings  under  the 
cognizance  of  these  courts  a  certain  description  of  delinquen- 
cies by  commissioned  officers  of  companies,  it  appears  to  me 


ALBANY,  JANUARY,  1848.  209 

The  Major  &c.  of  New-York  «.  Nicboku 

it  necessarily  follows  that  the  fines  must  be  collected  in  the 
same  way,  and  be  applied  to  the  same  uses. 

The  militia  act,  even  with  the  amendment  of  1835,  is  not 
remarkable  for  perspicuity.  I  have  rarely  looked  into  a  stat- 
ute more  confused  and  contradictory  than  this,  so  far  as  relates 
to  the  jurisdiction  of  regimental  courts-martial  and  the  imposi- 
tion and  collection  of  fines  for  delinquencies  of  commissioned 
officers  under  the  rank  of  colonel. 

Judgment  affirmed. 


THE  MAYOR  &c.  OF  THE  CITY  OF  NEW- YORK  vs.  NICHOLS. 

A  city  ordinance  prohibiting  the  sale  of  pressed  hay  without  inspection,  and  impos- 
ing a  penalty  for  non-observance,  contravenes  the  provimona  o{  I  K.  S.  574,  $  5 
et  scq^  and  is  therefore  void. 

ERROR  to  the  superior  court  of  the  city  of  New-York.  The 
plaintiffs  in  error  sued  the  defendant  in  error  before  one  of  the 
assistant  justices  of  the  city  of  New- York  to  recover  the  amount 
of  several  penalties  incurred  for  the  violation  of  an  ordinance 
of  the  city  relating  to  the  sale  of  hay,  passed  May  8th,  1839. 
The  ordinance  made  it  the  duty  of  the  inspectors  to  cause  all 
pressed  hay  &c.  which  might  be  sold  or  offered  for  sale  in  the 
city  of  New-York  to  be  inspected  and  weighed,  and  the  quality 
and  weight  thereof  to  be  marked  thereon  ;  and  provided  that 
if  any  person  should  sell  any  such  hay  without  having  the  same 
inspected  and  weighed  according  to  the  requirements  of  the 
ordinance,  he  should  forfeit  and  pay  the  sum  of  $5  for  every 
bundle  sold.  It  appeared  that  the  defendant  had  sold  two 
bundles  of  pressed  hay  in  violation  of  the  ordinance,  and  the 
justice  rendered  a  judgment  for  $10  in  favor  of  the  plaintiffs. 
The  judgment  was  reversed  by  the  superior  court  on  certiorari, 
and  the  plaintiffs  sued  out  a  writ  of  error. 

VOL.  IV.  27 


210       CASES  IN  THE  SUPREME  COURT. 

The  Mayor  &c.  of  New-York  ».  Nichols. 

J.  McKeon3  for  the  plaintiffs  in  error. 
A.  L.  Jordan,  for  the  defendant  in  error. 

By  the  Court,  NELSON,  Ch.  J.  It  is  provided  by  statute, 
that  every  person  who  shall  put  up  and  press  any  bundle  of 
hay  for  market,  shall  mark  or  brand,  in  a  legible  manner,  the 
initials  of  his  Christian  name,  and  his  surname,  at  full  length, 
and  the  name  of  the  town  in  which  he  resides,  on  some  board 
or  wood  attached  to  the  bundle.  (1  12.  S.  574,  §  5.)  No  per- 
son shall  put  or  conceal  in  any  such  bundle  of  hay,  any  wet 
or  damaged  hay,  or  other  materials,  or  hay  of  an  inferior 
quality  to  that  which  plainly  appears  upon  the  outside  of  the 
bundle.  (Id.  §  6.)  Any  person  who  shall  put  up,  or  cause  to 
be  put  up  and  sold,  any  bundle  of  pressed  hay  in  violation  of 
the  preceding  provisions,  shall  be  liable  to  be  prosecuted  in  an 
action  of  debt  by  the  aggrieved  party ;  and  if  the  court  shall 
be  satisfied,  from  the  testimony  given,  that  any  of  the  preceding 
provisions  have  been  violated,  judgment  shall  be  rendered  for 
a  penalty  of  one  dollar  against  the  defendant,  in  favor  of  the 
plaintiff,  together  with  such  damages  as  he  has  suffered  thereby, 
with  costs  of  suit.  (Id.  §  7.)  Such  hay  may  be  sold  without 
deduction  for  tare,  and  by  the  weights  as  marked,  or  any  other 
standard  weight  that  shall  be  agreed  upon  between  the  buyer 
and  seller.  (Id.  §8.) 

These  provisions  obviously  authorize  a  sale  of  pressed  hay 
without  inspection,  and  the  corporation  of  the  city  of  New- 
York  possesses  no  power  to  repeal  or  supercede  them.  If  they 
are  violated,  a  remedy  is  pointed  out ;  and  this,  if  any,  must 
be  resorted  to.  The  system  of  inspecting  hay  is  abolished  by 
the  statute,  and,  in  place  of  it,  the  seller  is  required  to  prepare 
the  article  for  market  in  a  particular  manner,  at  the  peril  of 
being  subjected  to  the  penalties  annexed. 

The  eighth  section  of  the  revised  statutes  was  amended  by 
the  act  of  1835,  (Sess.  L.  of '35,  p.  280,)  so  as  to  allow  an  in- 
spection in  case  the  parties  desired  it  j  but  the  provision  is  not 


ALBANY,  JANUARY,  1843.  211 

Suydam  ».  Westfall. 

obligatory,  and  the  seller  may  still  dispose  of  his  hay  without 
having  it  inspected  if  he  choose  to  do  so. 

Judgment  affirmed. 


SUYDAM  and  others  vs.  WESTFALL,  impleaded  &c. 

Where  the  drawee  of  a  bill  of  exchange  refuses  to  accept  or  pay,  the  drawer  and 
endorsers  are  liable  to  the  holder  in  an  action  on  die  bill. 

After  acceptance,  the  drawee  is  prima  facie  the  principal  debtor,  the  drawer  and 
endorsers  being  regarded  as  mere  sureties ;  and  consequently  no  action  will  lio 
against  the  latter  in  the  name  of  the  acceptor. 

Otherwise,  where  the  drawee  accepts  and  pays  for  the  accommodation  of  the 
drawers ;  in  which  case  he  may  recover  the  amount  in  an  action  for  money  paid 
to  their  use. 

If,  however,  the  acceptance  be  made  with  knowledge  of  the  fact  that  one  of  the 
drawers  signed  merely  as  surety,  he  will  not  be  liable  to  the  acceptor ;  and 
this,  whether  the  relation  between  the  drawers  appear  on  the  face  of  the  bill 
or  not. 

A  drawer,  though  a  surety,  may  make  himself  liable  to  the  acceptor  of  an  accom- 
modation bill ;  e.  g.  by  joining  with  his  co-drawers  in  an  express  agreement  to 
refund  to  theacceptor  &c.  Per  COWEN,  J. 

But  this  liability  must  be  evidenced  by  a  written  agreement ;  a  parol  promise 
would  be  void  by  the  statute  of  frauds.  Semble ;  per  COWEN,  J. 

In  general,  where  a  person  puts  his  name  on  negotiable  paper,  he  will  be  deemed 
to  have  bound  himself  only  according  to  the  import  of  what  he  writes,  and  can. 
not  be  subjected  to  a  different  obligation  by  parol  evidence.  Per  COWE.V,  J. 

S.,  a  commission  merchant  n  the  city  of  New-York,  agreed  to  accept  drafts 
of  N.  to  the  amount  of  $20,000,  taking  a  bond  and  mortgage  from  him  for  twice 
that  sum  as  security ;  and  it  was  further  agreed  that  all  produce  shipped  to 
New-York  by  N.  should  be  sent  to  S.  for  sale  on  commission,  that  the  latter 
should  thus  be  kept  in  funds  to  meet  his  acceptances  as  they  became  due,  and 
that  he  should  be  entitled  to  two  and  a  half  per  cent,  commission  on  all  advance* 
or  acceptances  met  otherwise  than  with  produce.  N.'s  drafts  were  afterwards  ac- 
cepted and  paid  by  S.  to  an  amount  exceeding  the  value  of  the  product  con- 
signed  ;  and  he  charged  N.  with  interest  on  all  sums  thus  paid,  together  with 
two  and  a  half  per  cent,  commission  on  acceptances  not  met  with  produce. 
Held,  in  an  action  by  S.  to  recover  the  sum  advanced  upon  one  of  the  drafts, 
that  the  transaction  was  not  necessarily  usurious ;  especially  as  it  appeared  that 


212  CASES  IN  THE  SUPREME  COURT. 


Suydam  ».  Westfall. 


the  charge  for  commission  was  customary  among  merchants  engaged  in  similar 
business.    COWEN,  J.  dissented. 

Various  English  and  American  cases  relating  to  usurious  loans  of  credit,  &c 
cited  and  commented  on.    Per  COWEN,  J. 

ASSUMPSIT,  tried  at  the  New-York  circuit,  in  February,  1842, 
before  KENT,  C.  Judge.  The  action  was  by  Suydam,  Sage 
and  others,  commission  merchants  in  the  city  of  New-York, 
against  Norton,  Bartle  &  McNeil,  merchants  and  millers  at 

D  '  * 

Phelps,  Ontario  county,  and  Albert  Westfall.  The  plaintiffs 
claimed  to  recover  the  amount  of  a  bill  of  exchange  alleged  to 
have  been  paid  by  them  to  the  use  of  the  defendants.  The 
bill  was  in  these  words  : 

"Phelps,  July  1st,  1839. 
Messrs.  Suydam, 'Sage  &  Co. 

Four  months  after  date,  please  pay  to  the  order  of  C.  A. 
Cook,  Esq,  cash'r  one  thousand  dollars,  for  value  received, 
and  charge  to  the  acc't  of 

Your  ob't  serv'ts, 

Norton,  Bartle  &  McNeil, 
Albert  Westfall." 

Westfall  was  the  only  defendant  vrho  pleadetl.  «On  the  trial, 
the  case  was  this  :  At  various  times  during  the  years  1838  and 
1839  the  plaintiffs  received  on  consignment  a  large  quantity 
of  flour,  whiskey  &c.,  from  Norton,  Bartle  &  McNeil,  and  ac- 
cepted their  drafts  on  account  of  such  consignments.  The 
draft  or  bill  of  exchange  in  question  was  accepted  and  paid  on 
the  4tb  of  November,  1839.  The  plaintiffs  made  acceptances 
to  a  large  amount  beyond  the  value  of  the  goods  consigned  to 
them  ;  and  their  account  current,  which  was  proved  to  be  cor- 
rect, showed  a  balance  due  them  on  the  1st  of  January,  1840, 
of  $41,911,95.  This  account  contained  charges  for  interest 
on  actual  advances,  and  a  commission  of  two  and  a  half  per 
cent,  on  acceptances  not  met  with  produce.  The  dealings  be- 
tween the  parties  were  carried  on  under  an  ajgreement  signed 
by  the  plaintiffs,  as  follows  :  "  Memorandum  of  an  agreement 


ALBANY,  JANUARY,  1843.  213 

Suydam  t.  WertfidL 

made  the  22d  February,  1838,  between  Norton,  Bartle  &, 
McNeil,  of  the  town  of  Phelps,  and  Suydam,  Sage  &.  Co.  of 
the  city  of  New-York.  Whereas  it  is  proposed  that  the  said 
Suydam,  Sage  &  Co.  shall  come  under  acceptances  for  the  said 
Norton,  Bartle  &  McNeil,  for  the  security  of  which  they  have 
placed  in  the  hands  of  the  said  S.  S.  &  Co.  a  certain  bond  and 
mortgage,  it  is  mutually  understood  and  agreed  that  the  amount 
of  liabilities  that  Suydam,  Sage  &  Co.  shall  be  under  at  any 
time  for  said  Norton,  Bartle  &  McNeil,  shall  not  exceed  the 
sum  of  $20,000.  It  is  also  mutually  understood  and  agreed, 
that  all  the  produce  sent  to  New-York  by  Norton,  Bartle  & 
McNeil,  except  lumber,  shall  be  sent  to  Suydam,  Sage  &  Co. 
for  sale  on  commission  ;  that  they  shall  at  all  times  be  put  in 
funds  for  their  liabilities  by  the  time  they  become  due ;  and 
that  they  shall  be  entitled  to  2£  per  cent,  commission  on  all 
acceptances  or  advances  met  otherwise  than  with  produce.  It 
is  understood  that  Suydam,  Sage  &.  Co.  are  to  accept  at  all 
times  to  the  amount  of  $20,000;  that  flour  and  other  produce 
in  their  hands  shall  be  considered  as  money  at  the  market 
prices  unless  limited  or  ordered  held  for  higher  prices.  It  is 
also  further  agreed,  that  at  the  expiration  of  each  and  every 
year,  all  the  liabilities  and  advances  of  the*  said  Suydam,  Sage 
&  Co.  for  Norton,  Bartle  &  McNeil  shall  be  paid  up,  and  the 
account  balanced  by  the  said  Norton,  Bartle  &  McNeil.'' 

The  bond  and  mortgage  mentioned  in  the  agreement  were  exe- 
cuted to  the  plaintiffs  by  Bartle  and  McNeil,  conditioned  for  the 
payment  of  $40,000,  and  bore  date  on  the  12lh  of  February, 
1838.  On  the  1st  of  July,  1839,  the  bill  in  question  was  present- 
ed to  the  Bank  of  Geneva  by  one  of  the  firm  of  Norton,  Bartle  & 
McNeil,  and  at  the  same  time  a  letter  of  credit  was  handed  to 
the  cashier,  Mr.  Cook  j  on  receiving  which,  the  bill  was  dis- 
counted. The  letter  was  in  these  words  : 

"  New-York,  June  20th,  1839. 
C.  A.  Cook,  Esq. 

Messrs.  Norton,  Bartle  &  McNeil  are  hereby  authorized  to 
draw  upon  us  at  four  months  to  the  amount  of  $5000— the 


214  CASES  IN  THE  SUPREME  COURT. 


Suydara  »..Westfall. 


drafts  to  be  undersigned  by  such  persons  as  you  consider  per- 
fectly, responsible,  and  to  be  drawn  within    the   next  thirty 

days. 

Suydam,  Sage  &  Co." 

This  letter  was  sent  by  the  plaintiffs  to  Norton,  Bar  tie  & 
McNeil ;  and  the  cashier  of  the  bank  testified  that  the  money 
was  advanced  on  the  letter  of  credit.  The  witness  further 
stated  that,  when  banks  want  security  on  a  draft,  the  usual 
course  is  to  require  an  endorser.  It  further  appeared  that  the 
defendant  Westfall  was  a  farmer  residing  some  three  or  four 
miles  from  Norton,  Bartle  &  McNeil,  with  whom  he  had  no 
business  connection  whatever.  The  mortgaged  premises  were 
shown  to  be  worth  $20,000  on  a  sale  upon  credit.  Several 
commission  merchants  testified  that  it  was  the  established  cus- 
tom to  charge  the  same  commissions  on  acceptances  met  other- 
wise than  with  produce^  as  is  charged  on  sales  of  property  ; 
viz.  two  and  a  half  per  cent.  They  said  the  custom  was  to 
charge  commissions  on  the  whole  amount  of  acceptances  in 
case  they  exceeded  the  proceeds  of  the  property  ;  and,  by  way 
of  illustration,  stated,  that  if  the  commission  merchant  accepted 
for  $2000,  and  the  drawer  consigned  property  to  the  acceptoi- 
the  proceeds  of  which  were  $1500,  two  and  a  half  per  cent, 
was  charged  on  the  amount  of  the  sales,  and  the  like  per  cent- 
age  on  the  balance  of  the  drafts  after  deducting  the  proceeds 
of  the  sales.  It  further  appeared  that,  when  the  bill  in  ques- 
tion was  accepted,  the  plaintiffs  were  under  acceptances  to 
more  than  $20,000  over  and  above  all  property  and  proceeds 
in  their  hands  belonging  to  Norton,  Bartle  &  McNeil. 

The  circuit  judge  charged,  that  a  drawer  of  an  accommoda- 
tion bill  was,  in  general,  liable  to  refund  to  the  drawee  who 
accepted  and  paid  it  without  funds  ;  and  that  he  saw  nothing 
in  the  evidence  to  take  the  case  out  of  the  general  rule.  He 
also  instructed  the  jury  that  if  they  believed  the  charge  of  two 
and  a  half  per  cent,  was  a  bonajide^  usual  and  reasonable  com- 
pensation for  trouble,  and  warranted  by  the  usage  of  the  trade, 
the  transaction  was  not  usurious  ;  but  if  they  were  of  opinion 


ALBANY,  JANUARY,  IMS.  215 


Suvdam  t.  WeatfdL 


that  it  was  a  device  to  evade  the  statute  against  usury,  they 
should  find  for  the  defendants.  The  counsel  for  the  defendant 
\Vcstfall  excepted  to  the  judge's  charge.  The  jury  rendered 
a  verdict  for  the  plaintiffs,  and  the  defendant  Westfall  now 
moved  for  a  new  trial  on  a  bill  of  exceptions. 

A.  Worden,  for  the  defendant  Westfall. 
D.  (rrcig)  for  the  plaintiffs. 


"COWEN,  J.  This  is  an  action  for  money  paid,  laid  out 
and  expended  for  the  defendants,  on  the  ground  that  they 
have  overdrawn  upon  the  plaintiffs.  The  latter  acted,  for  some 
time  during  the  years  1838  and  1839,  as  commission  merchants 
for,  and  lenders  of  their  credit  to,  the  defendants  Norton, 
Bartle  &  McNeil,  who  placed  in  their  hands  a  bond  and 
mortgage  for  $40,000,  and  stipubted  to  furnish  produce  for 
sale  on  commission  ;  both  together  constituting,  with  the  per- 
sonal security  of  Norton,  Bartle  &  McNiel,  a  fund  on  which 
the  loans  were  to  be  made  as  their  occasions  might  require 
The  mode  of  advancing  was  by  bills  of  exchange  to  be  drawn 
on  the  plaintiffs  and  accepted  and  paid  by  them.  The  bills 
were  accordingly  drawn  by  Norton,  Bartle  &  McNeil,  with 
the  addition  to  their  names  of  some  undersigner  as  surety.  In 
June,  1839,  the  plaintiffs  sent  to  the  Geneva  bank  a  special 
letter  of  credit  in  favor  of  Norton,  Bartle  &  McNeil,  by 
which  the  former  proposed  to  accept  for  85000  on  bills  to  that 
amount,  if  undersigned  by  persons  v.-hom  the  bank  should  con- 
sider responsible.  Under  this  letter,  and  on  its  credit,  the  par- 
ticular bill  in  question  was  issued,  discounted  by  the  bank,  and 
accepted  and  paid  by  the  plaintiffs,  the  defendant  Westfall  un- 
dersigning as  surety.  The  loan  was  in  fact  to  Norton,  Bartle 
&  McNeil  —  not  to  Westfall.  The  account  was  made  by 
them,  the  charges  booked  against  them,  and  the  moneys  paid 
to  their  account  at  the  bank.  All  the  evidence  that  we  have 
of  the  extent  to  which  Westfall  intended  to  become  bound  as 


216  CASES  IN  THE  SUPREME  COURT, 

Suydam  v.  Westfall. 

surety,  arises  from  his  simple  act  of  undersigning.  That  he 
knew  or  ever  heard  of  the  letter,  upon  the  credit  of  which 
Cook  discounted  the  bill  in  question,  we  have  no  evidence. 
He  was  a  farmer  residing  within  a  few  miles  of  the  borrowers, 
and  undersigned  for  them  on  their  request.  The  legal  effect  of 
thus  drawing  was,  that,  on  the  plaintiffs  refusing  to  accept  or  pay, 
Westfall  would  be  liable  to  the  holder  in  a  suit  upon  the  bill 
itself;  but  never  to  the  drawees.  Nothing  is  better  settled 
than  that,  on  a  bill  of  exchange,  the  acceptors  are  primarily 
liable  as  principals,  and  the  drawers  and  endorsers  collaterally, 
as  a  sort  of  sureties.  I  speak  of  the  transaction  per  se.  Ko 
doubt  the  acceptors  of  bills  and  makers  of  notes  may  be  mere 
lenders  of  their  paper.  It  is  every  day's  practice  that  they  be- 
come so  by  accepting  accommodation  paper ;  but  this  is  not 
indicated  by  the  paper  itself.  It  arises  from  matter  extrinsic — 
an  agreement  by  which  the  ostensible  relations  of  the  parties 
are  subverted.  The  principal  thereby  becomes  a  surety  ;  and 
such  was  the  case  here  as  between  the  plaintiffs  and  Norton, 
Bartle  &  McNeil.  It  is  not  to  be  denied  that  the  relation  may 
be  thus  changed  by  the  mere  fact  of  overdrawing,  where  the 
drawers  come  for  their  own  benefit.  They  obtain  money  in 
this  way  which,  ex  equo  et  ftono,  they  ought  to  refund ;  and 
such  is  the  fact  and  the  law  of  this  case  as  against  Norton, 
Bartle  &  McNeil.  They  acted  with  knowledge,  and  the  money 
was  advanced  to  them.  Far  different  as  to  Westfall.  JVon 
constat  that  he  was  at  all  made  acquainted  with  the  basis  on 
which  the  parties  interested  did  their  business  ;  nor  is  it  proba- 
ble that  he  was.  The  transactions  between  them  seem  to  have 
been  founded  on  the  elements  that  too  commonly  enter  into 
the  credit  system,  viz.  fictitious  or  colorable  funds  of  the  imme- 
diate parties,  and  credulity  on  the  side  of  the  public.  No  doubt 
Westfall  might  have  made  himself  jointly  liable  with  Norton, 
Bartle  &  McNeil  for  these  advances.  He  might  have  joined 
them  in  an  express  agreement  as  guarantor  to  refund  the  plain- 
tiffs ;  he  might  have  joined  them  in  a  counter  acceptance  or  in 
making  a  promissory  note  for  the  amount.  I  rather  think  his 


ALBANY,  JANUARY,  1848.  217 

Suydam  t>.  Wcrtfall. 

liability  should  be  shown  in  writing.  It  is  collateral,  and,  if 
not  written,  would  be  open  to  objection  upon  the  statute  of 
frauds.  Take  it  that  Westfall  knew  Norton,  Bartle  &  Mc- 
Neil to  have  been  overdrawing,  and  expressly  promised  by 
parol  to  be  their  surety,  the  promise  would  perhaps  be  void  by 
the  statute  of  frauds.  Suppose  him  to  have  seen  the  letter  of 
credit  before  he  joined  them  in  drawing  ;  upon  what  construc- 
tion could  we  say  that  he  intended  to  become  liable  as  surety 
to  the  drawees'?  His  act,  to  say  the  least,  would  be  equivocal ; 
and  we  have  often  held  of  late  that  where  a  man  puts  his  name 
in  a  position  to  be  charged  as  endorser  on  negotiable  paper,  he 
cannot  be  changed  into  a  guarantor  by  reason  of  privity  to  be 
shown  by  facts  aliunde  ;  in  other  words,  that,  when  a  man  puts 
his  name  on  negotiable  paper,  he  shall  be  taken  to  have  bound 
himself  according  to  the  import  of  what  he  writes,  and  cannot, 
by  parol,  be  subjected  to  an  ulterior  obligation.  If  he  puts  his 
name  as  endorser,  he  is  an  endorser  only  ;  if  as  drawer,  it  would 
seem  to  follow  that  he  shall  be  holden  as  drawer  only  by  an 
action  on  the  paper  itself.  We  do  not  allow  the  violence  of 
first  subverting  the  intent,  and  then  the  statute  of  frauds,  in 
order  to  substitute  a  mere  implied  for  a  written  promise.  We 
have  refused  to  force  a  guaranty  upon  a  man  when  he  has  told 
us  by  his  contract  that  he  means  something  less.  But  it  is  not 
necessary  in  the  instance  before  us  to  declare  that  a  drawer, 
though  a  surety,  with  such  privity  as  to  know  that  he  is  over- 
drawing, can  escape  an  implied  engagement  as  guarantor. 
Here  was  no  privity.  It  was  the  simple  act  of  Westfall  putting 
his  name  to  a  bill  as  surety  drawer.  What  does  he  say  ?  Pre- 
cisely what  an  endorser  says  :  "  I  will  pay  on  default  of  the 
principal,  and  due  notice."  Pay  whom  ?  The  holder ;  not 
surely  the  drawees  who  accept,  and  thereby  acknowledge 
themselves  in  funds.  They  would  rather  be  liable  to  him  or 
his  principals ;  and  if  they  pay,  they  do  so  as  in  duty  bound. 
They  have  taken  upon  themselves  the  character  of  principals ; 
and  when  they  call  upon  him  to  refund,  they  make  a  call  be- 
yond his  undertaking.  He  may  answer,  nan  h&c  in  ftedcra 
VOL.  IV.  28 


218  CASES  IN  THE  SUPREME  COURT. 

Suydam  v.  Westfall. 

veni.  A  holder  showing  him  to  be  a  drawer,  can  make  him 
liable  as  such  j  but  to  the  acceptors  he  never  came  under  any 
express  engagement.  They  knew  that  he  put  his  name  to  the 
bill  as  surety  ;  and  had  no  reason  to  suppose  he  intended  more 
than  to  give  the  bill  additional  strength  and  currency  at  the 
bank.  If  they  overpaid  Norton,  Bartle  &  McNeil,  it  was  more 
than  he  knew  they  erer  intended  to  do,  or  ever  told  him  of. 
He  never  promised  and  never  could  promise,  therefore,  to  re- 
fund them,  either  in  writing  or  by  parol ;  nor  will  the  law  im- 
ply an  obligation  to  repay  moneys  which  a  man  never  received. 
It  seems  to  me  that  in  such  a  case  there  are  no  materials  out 
of  which  a  guaranty  can  be  made.  I  forbear  however  to  pur- 
sue this  point  since  our  decision  in  Griffith  v.  Reed,  (21  Wend. 
502,)  from  which  the  present  cannot  be  distinguished.  It 
was  said  in  argument  that  there,  Reed  was  a  surety  on  the  face 
of  the  bill ;  and  it  is  true  that  Westfall  has  not  appended  the 
word  surety  to  his  name.  It  is  somewhat  strange  that  these 
plaintiffs  should  ask  us  to  act  upon  such  a  distinction.  Both 
they  and  the  bank  knew  just  as  well  the  relation  in  which 
Westfall  actually  stood,  as  if  he  had  called  himself  surety  ;  and 
the  plaintiffs  have  treated  him  throughout  as  a  mere  surety. 
The  only  thing  material  in  the  distinction  is  stated  by  Mr.  Jus- 
tice Bronson  in  Griffith  v.  Reed,  viz  :  "  When  it  does  not  ap- 
pear on  the  face  of  the  paper  that  the  party  is  a  surety,  notice 
of  the  character  in  which  he  contracted  must  of  course  be 
brought  home  to  the  holder  before  he  can  be  affected  by  it." 
The  object  is,  that  the  party  acting  on  the  credit  of  the  name 
should  not  be  imposed  upon  by  the  false  or  equivocal  position 
•which  it  occupies.  What  difference  could  it  have  made  to 
these  plaintiffs  if  Westfall  had  called  himself  surety  1  They 
knew  that  he  was  no  more  ;  and  he  had  been  procured  to  come 
in  as  such  by  their  own  request  to  Norton,  Bartle  &  McNeil. 
Had  they  intended  to  claim  against  him  as  a  guarantor  of  the 
loan,  it  behoved  them  at  least  to  tell  him  that  his  principals 
were  drawing  on  a  fictitious  fund,  and  to  take  his  express  en- 
gagement to  make  it  good  pro  tanto. 


ALBANY,  JANUAKY,  1848. 


Suydam  t>.  WertfiUL 


Having  reached  the  conclusion  that  the  transaction  was  not 
of  a  nature  to  raise  an  implied  promise  by  Westfall,  the  case 
might  properly  be  disposed  of  without  going  into  the  question 
of  usury.  There  are  reasons,  however,  why,  in  this  case,  the 
question  should  not  be  entirely  overlooked.  This  suit  is  said 
to  be  the  pioneer  of  many  which  are  in  contemplation  against 
others  occupying  the  same  position  as  Westfall.  The  question 
has  been  well  argued,  and,  for  aught  I  know,  may  yet  become 
material  to  the  ulterior  disposition  of  this  case,  should  it  be  re- 
tried. 

No  man  is  entitled  to  take  more  than  at  the  rate  of  seven  per 
cent,  per  annum  for  the  loan  or  forbearance  of  his  moneys, 
goods  or  things  in  action  ;  nor  can  he  adopt  any  indirect  meth- 
od or  device  by  which  more  shall  be  obtained  ;  and  all  con- 
tracts and  arrangements  by  which,  directly  or  indirectly,  an 
attempt  is  made  to  secure  more  than  that,  are  void.  (1  R.  S. 
760,  2d  ed.)  A  loan  of  credit  at  a  higher  rate  is  one  instance  j 
e.  g.  a  loan  of  acceptances,  (Kent  v.  Lowen,  1  Camp.  177,) 
notes,  (Dunham  v.  Dey,  3  John.  R.  40,  Dunham  \.  Gould. 
16  id.  367,  Fanning  v.  Dunham,  5  John.  Ch.  R.  122,)  or  en- 
dorsements. (Fanning  v.  Dunham,  id.  122,  134  j  Steele  v. 
Whipple,  21  Wend.  103.)  Speaking  in  Fanning  \.  Dunham, 
Chancellor  Kent  said  :  "  Instead  of  being  a  cash  advance,  it 
was  a  loan  of  his  credit  to  the  plaintiff,  and  attended  with  the 
same  risk  and  trouble  as  if  he  had  loaned  the  cash."  "  In  every 
case  in  which  a  note  was  for  four  months,  forinstance,  two  and 
half  per  cent,  commissions  was  more  than  at  the  rate  of  seven 
per  cent.,  and  consequently  usurious."  That  is  the  exact  case 
of  the  acceptance  in  question.  Looking  at  the  loan  of  credit 
eo  nomine,  the  law  allows  no  exception.  If  the  party  accept- 
ing be  at  the  same  time  retained  either  generally  or  specially 
to  do  a  distinct  business,  he  may  be  paid  for  that  the  accus- 
tomed charges  ;  but  nothing  more  on  account  of  the  loan. 
(Com.  on  Usury,  134.)  Thus,  a  country  banker  loaning  his 
own  notes,  may  take  the  actual  difference  of  exchange  foi 
drawing  on  his  funds  at  the  place  which  forms  the  standard  of 


220       CASES  IN  THE  SUPREME  COURT. 

Suydam  v.  WcstfalJ. 

exchange.  This  is  a  distinct  business — remitting  and  making 
good  the  loan  at  a  distant  place.  It  is  the  same  as  if  a  third  per- 
son should  take  the  loan  in  exchange  for  a  bill  on  the  same  place. 
The  cases  of  Hammett  v.  Yea,  (1  Bos.  fy  Pull.  144,)  and  Master- 
man  v.  Cowrie,  (3  Camp.  488,)  need  scarcely  be  mentioned. 
In  the  latter,  the  whole  seems  to  have  been  resolvable  into  work, 
labor  and  expense  of  the  plaintiffs,  who  were  bankers,  in  fixing 
out  a  fund  on  which  they  could  accept  for  a  stranger,  without 
any  mention  or  idea  of  ever  advancing  any  money  or  charging 
interest.  For  all  this  they  charged  a  small  per  centage  of 
5s.  Lord  Ellenborough  said,  "If  there  be  a  stipulation  for 
more  than  five  per  cent,  on  a  contemplated  advance,  the  agree- 
ment is  usurious ;"  though  he  mentions  a  possible  right  to  a 
commission  even  upon  a  discount,  founded  in  the  collateral  ex- 
pense of  procuring  specie,  keeping  clerks  and  a  counting- 
house,  on  purpose  to  accept  and  pay  bills  with  funds  provided 
by  the  person  for  whom  the  business  is  done.  But  it  is  clear 
that  if  such  charges  be  allowed  at  all,  they  are  predicable  of 
bankers  only.  (Vid.  per  Spencer,  J.  13  John.  R.  47;  Kent, 
chancellor,  16  id.  374,  5  ;  7  John.  Ch.  R.  78,  79  ;  Ex  parte 
Jones,  17  Vesey,  332  ;  Baynes  v.  Fry,  15  id.  120  ;  Carstairs  v. 
Stein,  4  Maule  $•  Selw.  192;  Sussex  Bank  v.  Baldwin,  2 
Harris.  JV.  J.  Rep.  487,  497, 505.)  Ex  parte  Henson,  (1  Mad. 
Rep.  112,)  was  the  case  of  a  bill  broker,  and  might  have  been 
right  for  the  expense  of  collecting  which  he  usually  paid  in 
London.  (Jluriol  v.  Thomas,  2  T.  R.  52  ;  Campbell  v.  Shields, 
6  Leigh,  517 ;  Kent  v.  Phelps,  2  Day,  483.)  Beyond  that, 
it  would  be  more  questionable  if  it  had  not  been  the  mere  dis- 
count of  a  bill  in  payment  of  a  precedent  debt.  In  Nourse  v. 
Prime,  (7  John.  Ch.  R.  69, 76,)  the  work  and  labor  were  easily 
separable.  The  charge  and  allowance  was  for  stock-brokerage 
merely. 

The  case  of  a  factor  receiving  a  per  centage  for  his  work  and 
labor,  and,  where  he  acts  on  a  del  credere  commission,  adding 
a  per  centage  for  guarantying  the  price  of  the  goods  sold  on 
account  of  his  principal,  is  quite  familiar.  No  one  ever  thought 


ALBANY,  JANUARY,  1843. 


Suydam  t.  WeotfrlL 


of  impeaching  such  addition  as  usurious.  ( Vid.  M*CullocN» 
Diet,  of  Commerce^  "  Factor."}  He  is  frequently  involved  in 
the  execution  of  very  extensive  and  important  trusts,  beside  in- 
curring heavy  and  undefined  responsibilities.  So  long  as  his 
compensation  has  a  strict  reference  to  his  duties  and  responsi- 
bilities as  factor,  it  is  no  more  usurious  than  a  compensation  to 
any  other  servant.  It  is  the  case  of  Palmer  v.  Baker  ^  (1  Maude, 
(f  Selw.  56,)  where  bankers  were  allowed  to  take  a  like  com- 
pensation for  trouble  in  executing  a  long  trust,  it  appearing 
that  it  had  no  connection  with  their  advances  of  money.  I 
have  met  with  no  English  case  which  allows  a  factor  to  take  a 
commission  on  his  acceptances  or  advances  as  such,  over  and 
above  the  legal  rate  of  interest.  The  case  of  Trotter  v.  Cur- 
tis, (19  John.  R.  160,)  would  seem,  on  one  construction,  to  go 
the  length  of  allowing  both  a  premium  on  acceptances  and  in- 
terest on  consequent  advances,  the  principal  having  stipulated 
to  keep  his  factor  in  funds  by  consignments  equal  to  his  accept- 
ances ;  and  it  is  said,  the  parties  here  acted  upon  that  case.  But 
there  was  no  previous  stipulation  there  to  pay  the  commission. 
The  principal  had  disappointed  his  factor,  who  had  subsequent- 
ly charged  the  commission  which  the  defendant  had  allowed 
to  him  in  a  course  of  account  for  a  series  of  years.  The  learn- 
ed chief  justice  professedly  acted  on  the  principle  of  Palmer 
v.  Baker.  He  said  :  "  The  judges  placed  their  determination 
of  the  cause  on  the  enquiry,  whether  the  reservation  was  a 
motive  for  the  advance  of  the  money.  If  it  was,  they  pro- 
nounced it  usurious  ;  but  if  it  were  referable  to  trouble  only, 
then  they  pronounced  the  transaction  a  fair  one."  He  could 
not  mean  trouble  in  advancing  the  money ;  for,  as  I  have  no- 
ticed, that  case  went  entirely  on  labor  in  executing  the  trust. 
This  labor  consisted  in  clearing  an  extensive  tract  of  land,  and 
selling  and  converting  the  timber  into  money — a  labor  of  two  or 
three  years.  In  the  case  at  bar,  the  acceptances  were  made 
under  a  previous  agreement  for  the  commission ;  the  reserva- 
tion was  a  motive  for  the  acceptances.  In  Trotter  v.  Curtis, 
there  was  some  room  to  intend  that  the  trouble  was  not  the 


222  CASES  IN  THE  SUPREME  COURT. 

Suydara  a.  Westfall. 

mere  advance  of  the  money  ;  while  here,  the  plaintiffs  have  de- 
clared in  writing  that  it  was.  There  is,  moreover,  another  fea- 
ture which  distinguishes  this  case  from  that,  very  widely.  The 
future  advances  were,  by  agreement,  to  be  made  by  the  plaintiffs, 
not  in  their  exclusive  character  of  factors  or  commission  mer- 
chants, but  also  on  an  exchange  of  credit,  as  in  Dunham  v. 
Ley,  (13  John.  Rep.  40,)  and  Dunham  v.  Gould,  (16  id.  367.) 
The  plaintiffs  took  a  mortgage  from  two  of  the  defendants,  Bar- 
tie  and  McNeil,  with  a  bond  to  secure  $40,000,  on  the  credit  of 
which  they  agreed  to  accept  to  the  extentof  $20,000  ;  Norton, 
Bartle  &  McNeil  also  agreeing  to  keep  them  good  by  consign- 
ments of  produce  to  that  amount  as  the  pay  days  of  accep- 
tances came  round.  This  was,  in  terms,  a  loan  of  the  plain- 
tiffs' credit  at  two  and  a  half  per  cent,  over  and  above  their 
claim  for  interest  on  the  actual  advances  ultimately  to  be  made. 
The  cross  securities  were  no  more  than  cross  notes  or  cross  ac- 
ceptances ;  and  a  loan  of  credit  on  such  terms  wag,  in  the  cases 
of  Dunham  v.  Dey  and  Dunham  v.  Gould,  expressly  held  to  be 
usurious.  De  Forest  v.  Strong,  (8  Conn.  Rep.  513,)  strikes 
me  as  a  misapplication  of  Trotter  v.  Curtis.  If  not,  I  admit  it 
would  go  far  to  sustain  the  present  transaction  were  anoth- 
er circumstance  out  of  it.  In  the  case  at  bar,  no  one  can 
doubt  that  the  arrangement  was  with  a  view  to  loans  or  dis- 
counts at  the  bank.  It  was  a  device  to  raise  money  there,  by 
first  paying  the  discount  at  the  bank,  and  two  and  a  half  per 
cent,  in  addition,  to  the  acceptors.  The  whole  affair  took  that 
direction.  The  limitation  to  $20,000  and  the  consignments  to 
meet  it,  were  utterly  disregarded.  The  contract  itself  looked  to 
a  deficiency  in  produce,  and  in  a  little  more  than  one  year  a  bal- 
ance of  acceptances  was  swelled  up  to  more  than  $40,000.  No 
one  can  for  a  moment  suppose  that  this  was  a  regular  commis 
sion  business.  Admitting  that  a  facior  may  take  an  extra  pre- 
mium on  his  advances,  which  I  do  not,  yet  he  must  show  that 
he  acted  strictly  within  the  line  of  his  agency.  The  whole 
must  be  an  unmixed  commission  business,  and  the  advances 
made  on  that  basis.  The  usage  given  in  evidence  seems  to  me 


ALBANY,  JANUARY,  1843.  223 


Suvdam  t>.  Weetfall. 


entirely  inapplicable,  as  much  so  as  the  usage  in  Dunham 
v.  Dey  and  Dunham  v.  Gould.  I  see  nothing  to  distinguish 
the  case  from  Kent  v.  Lowen,  (1  Camp.  177,)  wherein  Lord 
Ellenborough  told  the  jury  that  they  were,  if  they  believed  th» 
two  and  a  half  per  cent,  was  taken  on  exchange  of  securities, 
bound  to  find  usury.  At  least,  I  think  the  charge  should  have 
been  as  strong  as  in  the  case  of  Dunham  v.  Dey.  Platt,  J. 
there  told  the  jury,  that  if  they  believed  the  transaction  to  have 
been  for  the  purpose  of  raising  money  at  a  greater  rate  of  in- 
terest than  seven  per  cent,  per  annum,  which  they  were  war- 
ranted to  infer,  then  such  intention  made  it  intrinsically  a  loan. 
and  the  transaction  was  usurious  and  void. 

I  assume  that  the  bill  in  question  was  drawn  under  the  agree- 
ment of  the  plaintiffs,  because  this  was  assumed  at  the  trial,  and 
the  case  put  to  the  jury  on  the  usage  of  commission  merchants. 

There  was  certainly  a  term  in  the  contract  between  the 
parties,  by  which  Norton,  Bartle  &  McNeil  might  have 
avoided  the  effect  of  the  stipulation  to  pay  the  two  and  a  half 
per  cent.  I  allude  to  the  condition  that  the  commission  was 
to  be  payable  only  on  acceptances  or  advances  made  otherwise 
than  with  produce.  By  making  very  early  and  perfectly  ade- 
quate consignments,  thus  keeping  the  plaintiffs  clearly  in  funds 
from  the  proceeds,  equal  to  their  acceptances  and  advances, 
the  extra  charge  might  have  been  put  out  of  the  question. 
Looking,  however,  at  the  nature  of  the  fund,  and  the  practical 
disregard  of  that  condition  by  both  parties,  there  is  scarcely 
any  ground  for  saying  that  either  of  them  considered  the  con- 
dition as  any  thing  more  than  nominal.  Drafts  and  accept- 
ances continued  to  a  very  large  amount  over  and  above  actual 
consignments,  and  the  original  stipulation  expressly  provided 
for  such  a  consequence.  There  is  no  pretence  for  saying  that 
the  transaction  is  like  a  contract  to  pay  extra  interest  by  w;iy 
of  penalty  for  default  of  paying  a  specific  debt  at  an  appointed 
day;  nor  was  the  point  made  at  the  trial.  Sueh  stipulations 
are,  at  best,  not  to  be  received  with  much  favor.  (Com.  on 
Usury,  80,  81  -f  P/owd.  on  Usury,  85.)  They  have  been  held 


224  CASES  IN  THE  SUPREME  COURT. 

Ketchum  v.  Barber. 

innocent  and  even  obligatory,  when  inserted  for  the  obvious 
purpose  of  securing  prompt  payment  j  but  never,  I  believe, 
when  their  violation  has  been  expressly,  or  by  secret  under- 
standing, looked  to  by  the  parties  :  nor,  especially,  where  they 
have  gone  forward  increasing  the  debt  upon  which  the  extra 
allowance  was  to  be  made,  after  the  condition  has  been  violat- 
ed. The  strongest  cases  of  this  kind  in  favor  of  the  creditor 
are,  I  think,  Campbell  v.  Shields,  (6  Leigh,  517,  519  to  522,) 
and  the  cases  there  cited. 

On  the  whole,  I  think  the  plaintiffs  cannot  effectually  claim 
protection  against  the  imputation  of  usury,  from  any  of  the 
adjudged  cases. 

NELSON,  Ch.  J.  and  BRONSON,  J.  were  of  opinion  that,  on 
the  question  of. usury,  the  case  of  Trotter  v.  Curtis,  (19  John. 
160,)  was  decisive  in  favor  of  the  plaintiffs.  In  other  respects, 
however,  they  concurred  with  COWEN,  J. 

New  trial  granted. 


KETCHUM  vs.  BARBER  and  others. 

The  bonafide  sale  of  one's  credit  by  way  of  guaranty  or  endorsement,  though  for  a 
compensation  exceeding  the  lawful  rate  of  interest,  is  not  usurious,  if  the  transac 
tion  be  unconnected  with  a  loan  between  the  parties.  Per  NELSON,  Ch.  J. 

If  connected  with  a  loan,  the  transaction  will  be  deemed  usurious,  unless  the  excess 
beyond  legal  interest  be  fairly  ascribable  to  trouble  and  expense  actually  and 
bona  fide  incurred  in  and  about  the  business  of  the  loan.  Per  NELSON,  Ch.  J. 

In  such  cases,  it  is  in  general  a  question  for  the  jury  whether  the  excess,  by  what, 
ever  name  the  parties  may  have  called  it,  was  really  taken  as  a  compensation  for 
trouble  and  expense  incurred  in  good  faith,  or  was  mere  usury  in  disguise.  Per 
NELSON,  Ch.  J. 

M.,  being  desirous  of  raising  money  upon  a  note  at  four  months,  drawn  by  himself 
and  endorsed  for  his  accommodation  by  B.  and  L.,  authorized  a  broker  to  buy 
an  additional  name  or  guaranty  for  the  purpose  of  getting  the  note  discounted. 
Application  was  accordingly  made  to  K.,  also  a  broker,  who  endorsed  the  note 
on  receiving  a  conuniorion  of  two  and  a  half  or  three  per  cent.,  and  it  was  then 


ALBANY,  JANUARY,  1843.  225 


Ketchum  t>.  Barber. 


discounted  at  a  bank.  About  the  time  it  fell  due,  M.  made  another  note,  corns, 
ponding  in  amount,  which,  after  being  endorsed,  was  discounted  by  K.,  and  the 
proceeds  applied  in  payment  of  the  first  The  second  note  not  being  met  at  ma- 
turity,  K.  brought  an  action  upon  it  against  the  maker  and  endorsers,  which  was 
referred,  and  the  referee  reported  in  K.'s  favor.  Held,  on  motion  to  set  aside  to* 
report,  that  the  taking  of  the  commission  by  K.  did  not  render  the  transaction 
per  se  usurious,  and  the  motion  was  therefore  denied. 

COWEX,  J.  dissented,  holding  that  the  transaction  between  K.  and  M.,  in  respect 
to  the  first  note,  was  not  a  sale  in  any  sense,  but  amounted  to  a  usurious  loan  of 
K.'s  credit ;  and  the  note  in  question  having  come  to  his  hands  by  way  of  fur. 
ther  security,  or  extension  of  the  loan,  it  was  void. 

The  case  of  Sttele  v.  Whipple,  (21  Wend.  103,)  commented  on  and  explained, 
and  Kent  v.  Lowen,  (1  Camp.  177,)  overruled. 

Various  other  English  and  American  cases,  relating  to  indirect  usurious  loans,  cited 
and  reviewed.  Per  NELSON,  Ch.  J.  and  COWEN,  J. 

A  notarial  certificate  stating  that  notice  of  protest  wot  served  Ate.  by  putting  th« 
same  in  the  post  office,  directed  &.C.,  is  a  sufficient  compliance  with  the  statute, 
(2  R.  S.  212,  §  46,  2d  ed.)  though  it  do  not  expressly  state  by  vsJum  the  service 
was  made. 

Since  the  act  of  1835,  (Sens.  L.  of  '35,  p.  152,)  the  certificate  need  not  specify 
the  reputed  place  of  residence  of  the  party  notified,  nor  the  post  office  nearest 
thereto. 

MOTION  to  set  aside  the  report  of  a  referee.  The  action  was 
against  the  maker  and  endorsers  of  two  promissory  notes  in 
these  words  : 

«  $1000.  New-York,  Oct.  10th,  1840. 

Four  months  after  date,  I  promise  to  pay  the  order  of  Josiah 
Barber  and  A.  D.  Leonard,  one  thousand  dollars  at  the  Union 
Bank,  for  value  received. 

(Signed)         Robert  Muir. 
(Endorsed)    Josiah  Barber, 

A.  D.  Leonard,  Auburn,  N.  Y." 

«  $2000.  New-York,  Oct.  12th,  1840. 

Four  months  after  date,  I  promise  to  pay  the  order  of  Josiah 
Barber  and  A.  D.  Leonard,  two  thousand  dollars,  for  value 
received,  at  the  Union  Bank  in  this  city. 

(Signed)        Robert  Muir. 
(Endorsed)    Josiah  Barber, 

A.  D.  Leonard,  Auburn,  N.  Y." 
VOL.  TV.  29 


226  CASES  IN  THE  SUPREME  COURT. 

Ketchum  ».  Barber. 

On  the  hearing  before  the  referee,  the  plaintiff,  after  proving 
the  genuineness  of  the  notes  and  endorsements,  and  that  the  de- 
fendants resided  at  Auburn  when  the  notes  fell  due,  gave  in 
evidence  two  notarial  certificates,  each  stating  that  notice  of 
protest  &c.  was  served  on  Josiah  Barber  by  putting  the  same 
in  the  post  office  directed  to  him  at  Auburn,  and  that  a  like 
notice  was  also  served  on  A.  D.  Leonard  by  putting  the  same 
in  the  post  office  directed  to  Auburn  "  according  to  directions 
on  note."  The  defendants'  counsel  objected  that  the  evidence 
of  notice  to  the  endorsers  was  insufficient,  because,  1.  The  cer- 
tificates did  not  state  that  the  notices  were  put  into  the  post 
office  by  the  notary,  nor  by  whom  they  were  put  in ;  and 
2.  The  certificates  did  not  state  that  Auburn  was  the  reputed 
place  of  residence  of  the  endorsers,  nor  the  post  office  nearest 
thereto.  The  objection  was  overruled. 

The  defendants  claimed  that  the  notes  were  void  for  usury  , 
and,  in  respect  to  this  branch  of  the  case,  the  following  facts 
appeared  :  In  June,  1840,  Muir  made  two  notes — one  for  $2000 
and  the  other  for  $1000 — payable  at  four  months,  and  procured 
them  to  be  endorsed  for  his  accommodation  by  Barber  and 
Leonard.  They  were  then  presented  by  Muir  to  one  Burr,  a 
broker  in  the  city  of  New- York,  with  a  view  to  raise  money 
on  them.  Burr  said  it  would  be  necessary  to  have  the  notes 
endorsed  by  a  person  residing  in  the  city ;  whereupon  Muir 
authorized  him  to  "buy  a  name  or  guaranty."  Applicatio  i 
was  accordingly  made  by  Burr  to  a  firm  of  brokers  of  whic  i 
the  plaintiff  was  a  member,  who  agreed  to  make  the  endorse- 
ments for  two  and  a  half  or  three  per  cent.  These  terms  w  ere 
acceded  to  by  Burr,  and  the  endorsements  made  on  payment  of 
the  per  centage.  One  of  the  notes  was  discounted  by  the 
Union  Bank,  of  which  the  plaintiff  was  a  director,  and  the 
other  by  some  other  bank  in  the  city  of  New-York.  A  fter  de- 
ducting the  sum  paid  for  the  endorsements  and  his  own  charges, 
Burr  paid  the  balance  of  the  proceeds  of  the  notes  to  Muir 
About  the  time  these  fell  due,  Muir  made  two  other  notes  (the 
notes  in  question)  and  left  them  with  Burr  to  be  vliscounted, 


ALBANY,  JANUARY,  1843.  227 


Kctchum  v.  Barber. 


directing  the  avails  to  be  applied  to  the  payment  of  the  first  notes. 
They  were  accordingly  discounted  by  the  plaintiff's  firm,  with 
full  knowledge  of  the  circumstances,  and  the  proceeds  applied 
as  directed  by  Muir. 

The  referee  reported  in  favor  of  the  plaintiff  for  the  amount 
of  the  two  notes,  with  interest.  He  concluded  his  report  by 
saying  that,  upon  a  fair  construction  of  the  testimony,  the  first 
transaction  was,  in  his  opinion,  the  mere  sale  of  endorsements, 
or,  in  other  words,  the  giving  of  a  conditional  guaranty  of  the 
payment  of  the  notes  for  which  the  plaintiff  received  a  stipu- 
lated compensation  ;  and  that  there  was  no  loan  of  money  or 
of  choses  in  action  within  the  meaning  of  the  statute  of  usury. 

W.  T.  Warden ,  for  the  defendants. 
5.  Beardsley,  for  the  plaintiff. 

NELSON,  Ch.  J.  Our  statute  against  usury,  (1  R.  S.  760, 
2d  ed.)  provides,  that  the  rate  of  interest  upon  the  loan  or 
forbearance  of  any  money,  goods  or  things  in  action,  shall 
continue  to  be  seven  dollars  upon  the  hundred ;  (§  1  j)  that  no 
person  or  corporation  shall,  directly  or  indirectly,  take  or  re- 
ceive in  money,  goods  or  things  in  action,  or  in  any  other  way, 
any  greater  sum  or  greater  value,  for  the  loan  or  forbearance 
&c. ;  (^  2  ;)  and  that  all  bonds,  bills,  notes  &c.,  and  all  other 
contracts  or  securities  whatsoever  &c.,  whereby  there  shall  be 
reserved  or  taken,  or  secured  or  agreed  to  be  reserved  or  taken, 
any  greater  sum  or  greater  value  for  the  loan  &c.  than  as  be- 
fore prescribed,  shall  be  void.  (^  5.) 

It  has  been  repeatedly  decided  under  this  act,  which  is  ta- 
ken, substantially,  from  the  statute  of  Anne,  that,  in  order  to 
make  a  transaction  usurious,  there  must  be  a  loan  of  "  money, 
goods  or  things  in  action,"  (to  use  the  words  of  our  statute,) 
and  an  agreement  to  take  more  than  legal  interest  for  the  for- 
bearance ;  or  some  device  contrived  for  the  purpose  of  evading 
or  concealing  the  appearance  of  a  loan,  when  in  truth  it  was 
such.  The  authorities  are  full  to  this  effect.  (Loyd  Y.  WU- 


228  CASES  IN  THE  SUPREME  COURT. 

Ketchum  ».  Barber. 

Hams,  3  Wils.  261 ;  Barclay  v.  Walmsley,  4  EasJ,  55  ;  Lloyd 
v.  Scotf ,  4  Peters,  205  ;  Cfo'%  on  Bills,  100,  .tfwi.  ed.  o/ 
1839 ;  Comyn  on  Usury,  156  ;  Ord  on  Usury,  24.)  It  is  not 
usury,  therefore,  for  an  acceptor  to  discount  for  a  premium  his 
own  acceptance  due  at  a  future  day,  for  this  is  not  a  loan,  but  an 
anticipation  of  payment ;  (Barclay  v.  Walmsley,  &  East,  55  ;) 
nor  is  the  bonafide  sale  of  a  bill  for  a  less  sum  than  the  amount 
payable  upon  its  face,  usurious.  (Ex  parte  Lee,  1  P.  Williams, 
782  ;  King  v.  Ridge,  4  Price,  50  j  Stoveld  v.  Eade,  4  Bing.  81 ; 
Cram  v.  Hendricks,  7  Wend.  569.)  And  a  contract,  made  at  the 
time  of  sale,  to  pay  more  than  legal  interest  on  the  purchase 
money  of  an  estate  bonajlde  sold,  has  been  decided  not  to  be  usu- 
rious. (Beete  v.  Bidgood,  7  Earn.  $  Cress.  453  j  1  Man.  <$•  Ryl- 
143,  S.  C. ;  Doe  v.  Brown,  Holt's  JV.  P.  C.  295.)  So,  of  a 
sale  of  goods  at  three  months  credit,  with  a  stipulation  that,  in 
case  the  money  be  not  paid,  the  Vendee  shall  allow  a  half  pen- 
ny an  ounce  per  month  till  the  debt  is  discharged  ;  provided  the 
transaction  be  a  bonafide  sale.  (Floyer  v.  Edwards,  Cowp.  1 12.) 
In  all  these  cases,  however,  if  the  transaction  be  a  mere  de- 
vice to  cover  and  conceal  a  loan  at  unlawful  interest,  it  then 
comes  within  the  statute.  But  whether  there  was  such  a  de- 
vice— a  corrupt  intention  to  evade  the  law — is  a  question  of 
fact  for  the  jury  to  determine  upon  a  consideration  of  all  the 
surrounding  circumstances.  (Hammett  v.  Yea,  1  Bos.  $  Pull. 
153  ;  Hutchinson  v.  Piper,  4  Taunt.  810  ;  Lee  v.  Cass,  1  id. 
511 ;  Masterman  v.  Cowrie,  3  Campb*  488 ;  Com.  qn  Usury, 
123  to  138,  and  the  cases  there  cited.)  Applying  this  test  to 
the  present  case,  I  am  unable  to  see  how  we  can  declare,  as 
matter  of  law,  after  the  finding  of  the  referee,  that  the  transac- 
tion is  within  the  statute.  We  see  there  was  no  loan  between 
the  parties  ;  and  that,  so  far  as  respects  the  plaintiff's  connec- 
tion with  the  first  notes,  he  merely  sold  the  guaranty  of  his 
firm.  There  was  no  application  for  a  loan  ;  and  the  referee 
has  expressly  found  that  none  was  directly  or  indirectly  made. 
In  short,  the  dealing  between  the  parties  was  in  fact  just  what 


ALBANY,  JANUARY,  1843.  229 


Kctchum  t>.  Barber. 


it  purports  to  have  been,  viz.  a  stipulated  compensation  for  the 
guaranty  of  the  plaintiff's  firm. 

The  case  is  therefore  narrowed  down  to  the  question  wheth- 
er a  bona  fide  sale  of  one's  credit  or  security  for  the  use  and 
benefit  of  another,  unconnected  with  a  loan,  is,  per  se,  usu- 
rious. 

Assuming,  as  we  must,  that  there  was  no  l#an,  the  transac- 
tion does  not  fall  within  those  decisions  which  have  now 
firmly  established  that  bankers  and  merchants  may,  in  addition 
to  lawful  interest  on  the  discount  of  bills  and  notes,  take  a  rea- 
sonable commission  by  way  of  compensation  for  trouble  and 
expense  ;  provided  such  commission  be  not  intended  as  a  de- 
vice to  cover  a  usurious  loan.  (Jluriol  v.  Thomas^  2  T.  R.  52, 
and  Winch  v.  Fenny  in  note  •  Hammett  v.  Yea,  1  Bos.  $  Pull. 
144 ;  Brooke  v.  Middleton,  1  Campb.  445  j  Masterman  T. 
Cowrie,  3  id.  488  ;  Baynes  v.  Fry,  15  Ves.  120 ;  Carstairs 
v.  Stein,  4  Maule  Sf  Selw.  192  •  Chit,  on  Bills,  100  to  105, 
Jim.  ed.  of  1839.)  The  cases  upon  this  subject  may  therefore  be 
laid  out  of  view,  as  having  no  direct  application  to  the  question 
before  us. 

The  case  of  Kent  v.  Lowen,  (1  Campb.  177,)  is  a  direct  au- 
thority in  favor  of  the  defendants.  Lord  Ellenborough  there 
held  a  bill  of  exchange  void  for  usury,  on  the  ground  that  the 
accommodation  acceptor,  through  whom  the  plaintiff  claimed 
title,  had  charged  a  commission  over  and  above  lawful  interest. 
He  said,  country  bankers  had  been  allowed  to  take,  besides  le- 
gal interest,  a  certain  commission  for  trouble  and  expense  j 
but  th-.it  was  in  discounting,  not  for  accepting  bills.  This  case 
was,  in  effect,  overruled  by  the  same  learned  judge  five  years 
afterwards,  in  Masterman  v.  Cowrie,  (3  Campb.  488,)  where 
be  held,  that  an  agreement  by  a  London  banker  to  accept  and 
pay  bills  of  exchange  drawn  in  the  country  for  a  certain  com- 
mission, he  to  be  furnished  with  funds  to  pay  the  bills  before 
they  became  due,  could  not  be  usurious,  there  being  no  con- 
templation of  an  advance  of  money  ;  and  that  if  an  advance 
had  been  contemplated,  it  would  have  presented  a  question  of 


230  CASES  IN  THE  SUPREME  COURT. 


Ketchura  v.  Barber. 


fact,  whether  the  commission  was  a  shift  to  obtain  more  than 
legal  interest  for  the  forbearance,  or  a  compensation  for 
trouble  and  expense  incurred  in  accepting  and  paying  the  bills. 
There  is  another  feature  in  Masterman  v.  Cowrie,  which  is  ap- 
plicable to  the  case  before  us.  After  the  parties  had  dealt  to- 
gether for  some  time,  the  plaintiff  expressed  himself  dissatisfied 
with  the  manner  in  which  the  bills  were  drawn,  and  requested 
that  they  should  be  drawn  for  the  future  by  some  respectable 
person  in  the  country.  It  was  then  agreed  that,  if  the  plain- 
tiff would  procure  such  a  person,  he  should  be  allowed  one 
shilling  per  cent,  for  his  trouble  in  drawing  the  bills.  M.,  a 
country  banker,  assented  to  the  proposition,  drew  the  future 
bills,  and  received  the  commission.  Lord  Ellenborough  said  • 
"  The  only  question  arising  out  of  the  one  shilling  allowed  to 
the  drawer  is,  whether  that  was  a  color  for  usury.  If  it  was 
bonajide  applied  to  M.'s  use,  it  cannot  be  usurious." 

In  Lee  v.  Cass,  (1  Taunt.  511,)  there  was  a  loan  of  money, 
and  the  lender  made  it  a  condition  that  he  should  receive,  in 
addition  to  lawful  interest,  three  and  a  half  per  cent,  for  guar- 
antying the  payment  of  the  bill  by  the  acceptors.  There  was 
no  doubt,  upon  the  evidence,  as  to  the  solvency  of  the  accep- 
tors ;  and  the  jury  found,  that  the  charge  was  a  device  to  get 
more  than  legal  interest.  The  counsel  in  that  case  conceded, 
however,  if  I  understand  them  aright,  that  had  there  been  no 
loan,  and  the  transaction  a  bona  fide  guaranty,  it  would  not 
have  been  chargeable  with  usury.  Indeed,  Mr.  Chitty  lays 
down  the  following  proposition  as  derivable  from  that  case  : 
"  So  a  charge  for  guaranteeing  the  payment  of  bills  when  un- 
connected with  any  loan,  by  the  party  making  it,  is  not  usu- 
rious ;"  (Chitty  on  Bills,  101,  Am.  ed.  of  1839 ;  see  also 
Chitty,  Jr.  100,  m.  ;)  and  a  similar  principle  is  asserted  by 
Eyre,  Ch.  J.  in  Hammett  v.  Yea,  (1  Bos.  $  Pull.  153.) 

In  Stoveld  v.  Eade,  (4  Bing.  81,)  one  Upton  having  a  bill 
of  .£2500,  payable  in  two  months,  which  he  could  not  readily 
negotiate  in  London,  requested  the  plaintiff  to  give  him  in  ex- 
change a  bill  on  his  London  banker  payable  at  the  same  time, 


ALBANY,  JANUARY,  1843.  231 


Ketchum  c.  Barber. 


which  he  did,  deducting  16/.  10*.  for  trouble  &c.  This  was 
held  by  the  whole  court  not  to  be  usury.  Best,  Ch.  J.,  after 
stating  the  case,  observed  :  "  The  plaintiff  consents  to  accom- 
modate him,  [Upton,]  but  demands  something  for  the  trouble 
and  risk.  If  he  had  required  more  than  5  per  cent.,  it  might 
have  been  thought  that  the  exchange  was  only  colorable,  and 
that  the  real  design  was  to  exact  usurious  interest ;  but  as  less 
than  5  per  cent,  was  taken,  and  the  transaction  was  evidently 
fbr  the  accommodafion  of  Upton,  there  is  no  pretence  for  call- 
ing it  a  loan,  or  for  contending  that  it  falls  within  the  provis- 
ions of  the  statutes  against  usury." 

In  Carstairs  v.  Stein,  (4  Maule  fy  Selw.  192,)  it  was  held, 
that  an  agreement  for  a  commission  of  one  half  per  cent,  for 
accepting  and  negotiating  bills,  is  not,  per  se,  usurious  ;  but  that 
it  presents  a  question  for  the  jury,  depending  upon  whether  the 
commission  may  be  ascribed  to  a  reasonable  remuneration  for 
trouble  and  expense,  or  whether  it  be  a  mere  color  for  the  pay- 
ment of  interest  above  5  per  cent,  upon  a  loan  of  money.  The 
court  said  :  "  All  commissions,  where  a  loan  of  money  exists, 
must  be  ascribed  to  and  considered  as  an  excess  beyond  legal 
interest,  unless  as  far  as  it  is  ascribable  to  trouble  and  expense 
bonafide  incurred  &c. ;  but  whether  any  thing,  and  how  much, 
is  justly  ascribable  to  this  latter  account,  is  always  a  question 
for  the  jury,  who  must,  upon  a  view  of  all  the  facts,  exercise  a 
sound  judgment  thereupon." 

The  case  of  Dunham  v.  Dey,  (13  John.  R.  40,)  in  this 
court,  is  in  perfect  harmony  with  the  current  of  English  au- 
thority. There,  the  plaintiff  exchanged  notes  with  M.  &  W. 
Ward,  to  the  amount  of  $9000,  for  which  he  charged  two  and 
a  half  per  cent.  The  Wards  were  indebted  to  the  plaintilf  at 
the  time  in  the  sum  of  $4000,  and,  being  pressed  for  payment, 
made  application  for  the  exchange.  The  judge  charged  the 
jury  that,  if  they  believed  the  transaction  to  have  been  for  the 
purpose  of  raising  money  at  a  greater  rate  of  interest  than  seven 
per  cent.,  such  intention  made  it  intrinsically  a  loan,  and  the 
transaction  was  usurious  and  void.  The  jury  found  for  the  de- 


232  CASES  IN  THE  SUPREME  COURT. 

Kctchum  v.  Barber. 

fendant.  Spencer,  J.  in  delivering  the  opinion  of  the  court, 
referred  with  approbation  to  the  case  of  Floyer  v.  Edwards, 
(Cowp.  112,)  quoting  the  language  of  Lord  Mansfield,  who,  he 
said,  had  laid  down  the  rule  with  much  perspicuity  and  force, 
thus :  "  it  (the  question)  depends,  principally,  on  the  contract 
being  a  loan  ;  and  the  statute  uses  the  words  l  directly  or  indi- 
rectly ;'  therefore,  in  all  questions,  in  whatever  respect  repug- 
nant to  the  statute,  we  must  get  at  the  nature  and  substance  of 
the  transaction  j  the  view  of  the  parties  must  be  ascertained,  to 
satisfy  the  court  that  there  is  a  loan  and  borrowing,  and  that 
the  substance  was  to  borrow  on  the  one  part,  and  to  lend  on 
the  other ;  and  where  the  real  truth  is  a  loan  of  money,  the 
wit  of  man  cannot  find  a  shift  to  take  it  out  of  the  statute." 
Spencer,  J.  then  added,  that  if  the  evidence  before  the  jury 
exhibited  a  case  of  borrowing  on  the  one  part  and  lending  on 
the  other,  at  a  greater  rate  of  interest  than  seven  per  cent.,  and 
this  entered  into  the  concoction  of  the  bargain,  the  transaction 
was  undoubtedly  usurious  and  the  notes  contaminated  by  it  and 
void.  The  learned  judge  also  referred  to  the  usage  among  en- 
dorsers of  bills  of  exchange,  and  sureties  on  custom  house 
bonds,  to  take  a  per  centage  for  advancing  their  responsibilities, 
observing :  "  I  see  nothing  improper  in  this  j  there  is  no  loan 
of  money,  directly  or  indirectly,  in  either  of  these  cases  ;  they 
come  neither  within  the  terms  or  mischiefs  of  the  statute,  and 
they  are  innocent  transactions."  The  case  was  afterwards 
taken  to  the  court  for  the  correction  of  errors,  (16  John.  R.  367,) 
where  the  judgment  of  the  supreme  court  was  affirmed.  Chan- 
cellor Kent  said,  that  the  commission  received  by  the  plaintiff 
exceeded  the  legal  rate  of  interest  upon  four  notes  of  the  plain- 
tiff, supposing  them  to  have  been  intended  as  a  loan  of  so  much 
cash  ;  and  the  question  was,  whether  the  commission  was  not 
another  name  for  interest  taken  on  a  loan  of  credit,  instead  of 
a  loan  of  cash ;  that  the  jury  had  found  the  exchange  of  the 
notes  was  for  the  purpose  of  raising  money  at  a  greater  rate 
of  interest  than  seven  per  cent. ;  that  this  fact  established,  be- 
yond all  contradiction,  the  charge  of  usury ;  and  that,  if  such 


ALBANY,  JANUARY,  1843.  233 


Kctchum  v.  Barber. 


was  the  object  of  the  parties,  (and  the  jury  had  so  found  it,)  then 
it  was  a  shift  or  contrivance  to  get  rid  of  the  statute  of  usury. 

In  a  case  between  the  same  parties,  (2  John.  Ch.  R.  182,) 
arising  out  of  the  same  course  of  dealing,  where  Dunham  had 
taken  by  way  of  commission,  upon  an  exchange  of  notes,  a  sum 
less  than  the  rate  of  lawful  interest,  Chancellor  Kent  treated  it 
as  a  loan  of  his  redit  or  security  to  the  Wards.  "  They  were 
enabled,"  he  said,  "  to  raise  money  by  discount  on  the  notes 
of  the  defendant,  (Dunham,)  as  being  of  better  credit  in  the 
market  than  their  own  ;  and  if  the  defendant  had  not  taken 
any  commission  for  the  transaction,  he  would  have  had  nothing 
for  his  risk  and  trouble.  If  he  had  taken  more  than  at  the 
rate  of  seven  per  cent,  for  the  amount  of  his  notes  for  the 
time  they  had  to  run,  it  would  probably  have  been  usury  in 
disguise."  This  view,  it  will  be  seen,  agrees  with  that  tak^n 
by  the  court  in  Stoveld  v.  Eade,  (4  Bing.  81,)  before  referred 
to.  The  two  cases  differ  in  this  :  In  Stoveld  v.  Eade  there 
was  no  ground  for  supposing  that  a  loan  was  intended  j  whereas, 
in  the  case  before  the  chancellor,  there  were  many  circumstan- 
ces tending  to  that  conclusion.  Best,  Ch.  J.  observed,  in  Sto- 
veld v.  Eade,  that  if  the  plaintiff  "  had  required  more  than  5 
per  cent.,  it  might  have  been  thought  the  exchange  was  only 
colorable,  and  that  the  real  design  was  to  exact  usurious  in- 
terest ;"  and  then,  according  to  the  settled  course  of  decision  in 
England,  the  court  would  have  been  bound  to  put  the  question 
to  the  jury.  The  case  before  Chancellor  Kent  bein^r  in  equi 
ty,  it  was  within  the  province  of  the  court  itself  to  determine 
whether  the  transaction  was  a  device  to  get  more  than  legal 
interest ;  and  the  chancellor  intimates  that,  if  more  had  been 
taken,  under  the  circumstances  of  that  case  he  should  have 
found  it  "  usury  in  disguise."  He  did  so  find  in  Fanning  v. 
Dunham,  (5  John.  Ch.  R.  122,)  where  more  than  legal  interest 
was  exacted  under  the  cover  of  a  charge  for  commission.  The 
decision  was  put  upon  the  ground  that  the  transaction  was  in 
effect  a  loan,  and  so  intended,  and  the  whole  a  contrivance  to 

VOL.  IV.  30 


234  CASES  IN  THE  SUPREME  COURT. 

Ketchum  t.  Barber. 


get  over  seven  per  cent.  (See  also  Nourse  v.  Prime,  7  John. 
Ch.  R.  78,  79.) 

From  this  review  of  the  cases  in  our  own  and  the  English 
counts,  we  may,  I  think,  safely  conclude,  1.  That  a  guaranty 
of  paper,  unconnected  with  a  loan,  and  really  and  bonajide  in- 
tended to  be  what  it  purports  on  its  face,  viz.  a  security  for 
payment — whatever  other  objections  may  be  made  to  the  trans- 
action— is  not  obnoxious  to  the  imputation  of  usury,  even  if  a 
commission  of  more  than  legal  interest  be  agreed  upon  and  taken 
for  the  same  j  2.  That  if  connected  ancj  mixed  up  with  a  loan, 
tnd  a  commission  exceeding  the  legal  rate  of  interest  be  taken, 
it  will  be  considered  an  excess  of  interest,  and,  therefore,  the 
transaction  usurious  and  void,  unless  the  excess  appear  to 
"have  been  intended  as  a  compensation  for  trouble  and  expense 
ionafide  incurred  in  the  business,  which,  in  England,  is  usually 
one  quarter  per  cent,  j  and  3.  That  whether  the  transaction  was 
intended  as  a  device  and  contrivance  for  the  purpose  of  disguising 
a  loan  and  enabling  the  guarantor  to  exact  interest  exceeding 
seven  per  cent.,  is  a  question  of  fact  to  be  determined  by  the 
jury  upon  a  consideration  of  all  the  circumstances. 

The  case  of  -Steele  y.  Whipple^  (21  Wend.  103,)  was  cited 
on.  the  argument,  and  principally  relied  on  by  the  counsel  for 
the  defendants.  The  course  of  reasoning  of  the  learned  justice 
•who  delivered  the  opinion  in  that  case,  undoubtedly  goes  far 
to  sustain  the  defence  here.  I  think  the  case  was  rightly  de- 
cided, and  that  it  was  put  on  its  true  ground  in  the  directions 
given  in  awarding  the  new  trial ;  which  were,  that  the  jury 
should  be  told  the  note  of  Jackson  was  usurious  in  the  hands 
of  Dutcher.  From  the  time  I  first  heard  the  case,  I  never 
doubted  that  Dutcher  was,  in  truth,  the  lender  of  the  money , 
This  was  the  irresistible  conclusion  from  the  facts.  He,  in 
fact,  took  the  note  and  advanced  the  money,  but  attempted  to 
prove  that  he  had  procured  the  money  by  negotiating  the  note, 
and  for  that  reason  had  taken  the  exorbitant  premium ;  all 
which,  in  my  judgment,  was  negatived  on  the  face  of  the 
transaction.  I  do  not  deny  that  the  case  stands  near, the  line 


ALBANY,  JANUARY,  1843.  235 


Kctchum  v.  Barber. 


which  divides  two  well  settled  classes  of  cases  ;  one  adjudging 
a  transaction  to  be  usurious  per  se,  and  the  other,  that  it  is  not, 
but  so  fraught  with  suspicion  of  usury  in  disguise  and  in  in- 
tent, that  a  jury  may  find  it.  The  case  itself,  however,  does 
not  necessarily  affirm  any  principle  at  variance  with  the  doc- 
trine of  the  one  in  hand. 

It  is  said,  if  a  per  centage  exceeding  legal  interest  be  allow- 
ed in  the  case  of  a  guaranty,  a  ready  way  is  opened  to  evade 
the  statute.  But  this  may  also  be  said  in  respect  to  dealings 
in  any  other  commodity — e.  g.  in  goods,  stocks,  annuities, 
notes,  bills  &c — yet  no  one  would  think  of  declaring  every 
sale  of  this  description  of  property  or  credit  to  be  within  the 
act,  for  fear  it  might  be  the  cover  of  a  usurious  loan.  Nor  was 
the  statute  made  or  expected  to  remedy  every  species  of  exac- 
tion. An  extravagant  charge  for  a  guaranty,  purely  as  such, 
is  no  more  usury  within  the  sense  and  meaning  of  the  law,  than 
if  exacted  or  given  for  any  article  of  comnerce.  The  price 
of  a  note,  bill  or  bond,  bought  in  the  market,  is  but  so  much 
given  for  the  credit  of  a  name  ;  and  this  is  an  every  day  trans- 
action. Neither  are  the  chances  all  on  one  side  j  as  was  exem- 
plified in  the  case  of  Oakley  v.  Boorman,  (21  Wend.  588.) 
There,  on  receiving  a  premium  of  $190,  Oakley  guarantied  by 
endorsement,  notes  to  an  amount  exceeding  $7000,  which  had 
about  six  months  to  run,  and,  in  a  few  weeks  afterwards,  the 
maker  failed.  Oakley  sought  to  reduce  his  liability  down  to 
the  $190,  but  was  charged  with  the  whole  demand.  Mr.  Jus- 
tice Cowen,  who  delivered  the  opinion,  likens  the  case  of  a 
gua  antor  to  that  of  an  insurer — which,  no  doubt,  in  principle, 
it  very  much  resembles — and  observes  that,  "no  matter  how 
great  the  risk  taken,  nor  how  small  the  premium  ;  or  on  the 
other  side,  how  enormous  the  premium  or  slight  the  hazard,  if 
the  contract  be  fair."  "  It  is  not,"  he  says,  "  for  us  to  hamper 
Mr.  Oakley  or  any  other  citizen,  in  such  a  way  as  to  preclude 
his  making  money  by  insuring  the  debts  of  his  neighbors.  It 
is  enough  that  he  has  not  been  imposed  upon."  He  further  re- 
marked :  "  There  is  no  distinction,  in  principle,  between  an 


236  CASES  IN  THE  SUPREME  COURT. 

Ketchum  v.  Barber. 

endorsement  to  secure  future  advances,  and  an  endorsement  to 
secure  a  precedent  debt."  I  agree  to  all  this,  and  will  merely 
say  that,  as  Oakley  would,  on  taking  up  the  note,  have  had  his 
remedy  over  against  the  maker,  if  he  had  not  failed  ;  so  here, 
the  plaintiff  is  entitled  to  the  like  remedy,  having  been  obliged 
to  advance  his  money,  and  take  up  the  note  he  had  guarantied. 
I  do  not  think  a  case  to  the  contrary  can  be  found  in  the 
English  books,  except  Kent  v.  Lowen,  decided  by  Ld.  Ellen- 
borough  at  nisi  prius  in  1808.  That  case  is  doubted  by  Mr 
Chitty,  (Chitty  on  Bills,  103,  note  (o),  Jim.  ed.  of  '39,)  con- 
fined by  Mr.  Comyn  to  a  mere  acceptance,  (Comyn  on  Usury, 
134,)  and  has  been  disregarded  by  Ld.  Ellenborough  himself. 
I  think  it  stands  opposed  to  the  whole  current  of  English  and 
American  authority. 

I  am  of  opinion,  therefore,  that  the  motion  to  set  aside  the 
report  of  the  referee  should  be  denied. 

BRONSON,  J.  It  cannot,  I  think,  be  denied  that  our  usury 
statutes  have  been  greatly  shaken  by  the  decision  of  the  court 
for  the  correction  of  errors  in  Rapelye  v.  Anderson,  made  in 
December  last.(a)  And  although  that  case  was  not  like  the  one 
now  before  us  in  its  circumstances,  it  was,  at  the  least,  as  plain 
a  case  of  usury  as  this  is ;  and  on  that  ground  I  concur  in  the 
opinion  that  the  report  of  the  referee  should  not  be  disturbed. 

COWEN,  J.  The  notary's  certificates  say,  without  qualifica- 
tion, that  the  notices  were  served  by  putting  the  same  into  the 
post  office.  The  2  R.  S.  212,  2d  ed.,  §  46,  simply  requires  a 
certificate  of  the  service  of  notice.  It  is  a  sufficient  compliance 
to  say  positively  that  the  service  was  made,  specifying  the 
mode.  Such  language  imports  that  the  notary  made  the  ser- 
vice himself,  or  knew  that  it  was  made.  He  need  not  state  by 
whom  the  business  was  done. 


(o)  See  this,  among  the  cases  decided  by  the  court  for  the  correction  of  error*. 
post 


ALBANY,  JANUARY,  1843  237 


Kctchum  v.  Barber. 


The  same  statute  requires,  it  is  true,  that  the  certificate  should 
ilso  specify  the  party's  reputed  place  of  residence,  and  the 
post  office  nearest  to  it ;  and  the  certificates  in  question  do  not 
in  this  respect  accord  with  the  requisition.  But  the  provision  is 
modified  by  the, statute  of  April  23d,  1835.  (Sess.  L.  o/'35, 
152.)  The  latter  act  declares,  that  it  shall  be  sufficient  if  the  no- 
tice (when  by  mail)  be  directed  to  the  city  or  town  where  the 
person  sought  to  be  charged  resided  at  the  time  of  endorsing, 
&c.  unless  at  the  time  of  affixing  his  signature,  &c.  he  shall,  in 
addition  thereto,  specify  on  the  note  &c.  the  post  office  to  which 
he  may  require  the  notice  to  be  addressed.  No  specification 
of  any  post  office  was  added  by  either  of  these  endorsers. 
Their  place  of  residence  at  the  time  was  added  ;  and  it  appears 
by  evidence  aliunde.  The  certificate  may  of  course  be  altered 
in  its  language,  so  as  to  follow  the  new  provision.  Here,  the 
certificates  state  that  the  notices  were  directed  to  Auburn ;  in 
one  branch  adding,  "  according  to  directions  on  note."  The 
certificates,  taken  in  connection  with  the  endorsements  and  the 
fact  of  residence  as  proved,  are,  I  think,  sufficient  to  satisfy 
the  provisions  of  the  amendatory  act. 

A  more  material  question,  however,  is,  whether  the  claim  of 
the  plaintiff  can  be  sustained  on  the  merits.  The  notes  in  ques- 
tion were  discounted  by  the  plaintiff's  firm  with  a  view  to  take 
up  the  two  notes  of  the  same  amount  which  he  had  endorsed 
for  his  firm,  then  lying  in  the  bank,  and  being  about  to  mature. 
These  two  notes  were  taken  up  by  the  avails  of  the  discount  j 
thus  virtually  bringing  the  notes  in  question  into  the  place  of 
the  others  as  renewal  notes.  They  seem  to  have  been  consid- 
ered by  all  parties  as  a  substitute  for  or  continuation  of  the  two 
notes  which  the  plaintiff  endorsed  for  the  premium  ;  and  were 
go  considered  by  the  referee.  Being  thus  connected,  their 
Talidity  depends  upon  the  same  question  as  would  that  of  tb« 
first  two  notes,  had  they  been  discounted  by  the  plaintiff,  or 
come  into  his  hands  by  the  act  of  taking  them  back  from  the 
bank  as  an  endorser.  That  was  accordingly  the  question  upon 
which  the  referee  passed. 


238  CASES  IN  THE  SUPREME  COURT, 


Ketchum  ».  Barber. 


The  original  notes  were  made  for  the  purpose  of  raising 
money  at  the  banks  in  New- York.  This  the  plain'tiff  under- 
stood. Burr  retained  him  to  endorse  in  order  to  give  the  notes 
currency  at  the  bank ;  and  one  of  them  was  discounted  at  the 
Union  Bank,  of  which  it  seems  the  plaintiff  was  a  director. 
For  endorsing  he  charged  a  premium  of  two  and  a  half  or  three 
per  cent.  ;  and  by  whatever  name  the  transaction  may  be  char- 
acterized, it  had  all  the  effect  upon  Muir,  the  debtor,  of  very 
oppressive  usury.  The  loan  was  clogged  by  way  of  premium 
and  discount  with  a  charge  at  the  rate  of  fourteen  and  a  half  to 
sixteen  per  cent,  per  annum,  according  as  the  premium  for  en- 
dorsing was  two  and  a  half  or  three  per  cent. 

Had  the  plaintiff  himself  discounted  the  notes  at  that  rate, 
all  the  cases  concur  that  they  would  have  been  void  in  his 
hands  for  usury.  (Com.  on  Usury,  122  •  Lowes  v.  Mazzarcdo, 
1  Stark.  Rep.  385  ;  JicklanA  v.  Pierce,  2  Camp.  599.)  Does 
it  make  any  difference  that  he  comes  in  to  effect  the  same  thing 
indirectly  1  that  he  endorses  the  original  notes,  and  discounts 
the  renewal  ?  In  either  form  he  received  interest  for  his  money 
at  the  same  rate  as  the  defendant  paid  it.  He  first  receives  at 
the  rate  of  seven  and  a  half  or  nine  per  cent,  per  annum,  with- 
out parting  with  a  cent  of  his  money.  He  loans  it  to  another 
during  the  four  months  the  first  notes  had  to  run  ;  and  in  the 
end,  whether  he  is  put  to  pay  the  original  notes  or  not,  his 
$3000  are  at  more  than  double  the  lawful  interest.  He  takec 
more  for  his  endorsement  than  the  bank  could  for  the  actual 
discount ;  and,  in  the  meantime,  lends  his  money  to  or  discounts 
for  another  at  two  and  a  third  per  cent.,  calls  back  the  actual 
loan  at  the  end  of  the  four  months,  and  redeems  his  endorse- 
ment at  the  bank  by  paying  the  principal.  I  speak  of  him  as 
a  lender,  who  will  not  let  his  $3000  lie  idle.  The  transaction 
scarcely  varies  in  form  from  an  original  discount  at  the  double 
interest.  *By  endorsing,  he  puts  himself  in  the  position  of  a 
holder.  At  the  end  of  the  four  months  he  takes  the  notes 
in  his  original  capacity.  He  is,  in  the  language  of  the  cases, 
remitted  to  his  rights,  and  may  sue  all  the  parties  as  if  he 


ALBANY,  JANUARY,  1848.  £39 


Ketchum  r.  Barber. 


had  never  parted  with  the  note ;  first  striking  out  his  own  name. 
(Cowley  v.  Dunlop,  7  T.  R.  561,  566  ;  Death  v.  Serwontert, 
Lutw.  885  ;  Bosanquet  v.  Dudman,  1  Stark.  Rep.  2,  3  ;  Houle 
v.  Baxter,  3  East,  177.)  But  the  law  looks  to  the  substance 
and  effect  of  the  transaction.  If,  through  the  agency  and  with 
the  privity  of  the  lender,  the  borrower  be  oppressed  with  a 
double  per  centage,  and  the  lender  gain  in  the  same  proportion, 
this  is  usury,  in  whatever  form  the  transaction  may  be  disguised, 
Even  a  direct  discount  is  not  a  formal  loan  ;  but  a  purchase  of 
paper.  In  substance  it  is  a  loan,  and  so  is  any  transaction 
which  results  in  the  same  thing. 

But  it  is  said,  the  plaintiff  was  a  broker  and  privileged  to 
take  a  reward  for  his  services  in  that  character.  Suppose  him, 
for  the  present,  to  have  acted  in  the  capacity  of  a  money  broker  : 
The  statute  of  usury  (1  R.  S.  705,  $  1, 2d  ed.)  forbids  his  taking 
directly  or  indirectly  more  than  one  half  per  cent,  for  soliciting, 
driving  or  procuring  the  loan  or  forbearance  of  $100  for  one 
year,  and  in  that  proportion.  Here  he  charges  two  and  a  half 
or  three  per  cent,  for  procuring  a  loan  at  four  months.  (See 
Pryce  \.  Wilkinson,  10  Moore,  177.)  A  broker  who  advances 
money  J  or  his  principal,  is  no  more  entitled  to  charge  him  extra 
interest  than  any  other  man.  If  he  act  as  broker  in  a  business 
distinct  from  the  procuring  of  loans — for  instance,  if  he  be  a 
stock  broker,  and,  in  the  execution  of  his  trust,  advance  money 
for  his  principal — this  does  not  preclude  him  from  charging  a 
commission  for  his  services.  But  the  compensation  is,  in  such 
cases,  allowed  for  his  actual  services.  He  is  no  more  allowed 
to  overgo  seven  per  cent,  in  his  charge  for  advances  than  any 
other  man.  No  one  is  allowed  to  take  more  than  that  for  the 
loan  or  forbearance  of  money.  The  case  of  Nourse  v.  Prime, 
Ward  #  Sands,  (7  John.  Ch.  Rep.  69,  77,)  will  illustrate  the 
exception  in  favor  of  all  brokers,  save  those  engage^n  pro- 
curing loans  of  money.  The  defendants  took  a  note  for  their 
advances  with  simple  interest,  including  also  a  distinct  charge 
of  a  half  per  cent,  for  their  services  in  negotiating  stock  trans- 
actions. This  being  a  fair  charge,  Chancellor  Kent  held  that 


£40        CASES  IN  THE  SUPREME  COURT. 


Ketchum  v.  Barber. 


the  note  was  not  void  for  usury.  The  allowance  is  made  on 
the  same  principle  upon  which  factors  are  permitted  to  charge  a 
commission  for  their  services  in  the  general  execution  of  their 
trust,  which  may  be  increased  by  reason  of  the  undefined  re- 
sponsibility and  labor  of  collection  resulting  from  a  del  credere 
commission.  (M'Culloch's  Diet,  of  Com.  tit.  Factor  ;  id.  tit. 
Brokers  ;  Story  on  Jlgency,  337,  §  328 ;  Paley  on  Agency,  by 
Lloyd,  40,  41,  100,  101.)  By  the  latter,  he  engages  to  sell 
the  goods  and  warrant  the  solvency  of  the  vendee.  (Chitty's 
Beawes,  47  ;  Mackenzie  v.  Scott,  6  Bro.  P.  C.  287,  Toml.  ed.  ; 
Grove  v.  Dubois,  1  T.  R.  115.)  In  other  words,  on  the  re- 
tainer of  the  creditor — not  the  debtor — he  takes  the  office  of  a 
salesman,  guarantor  and  collector  of  the  debts.  A.  creditor 
may,  no  doubt,  pay  or  contract  to  pay  his  agent  what  the  lat- 
ter pleases  to  charge  for  the  responsibility  and  trouble  of  col- 
lecting. The  whole  comes  down  to  this  principle.  Where  a 
bill  broker  at  Nottingham  took  a  bill  o  ondon  in  payment 
of  a  precedent  debt,  the  collection  of  which,  at  London,  would 
cost  him,  in  the  ordinary  course  of  his  business,  5s. ,  and  hi* 
other  charges  by  way  of  postage,  &c.  would  be  5$.  more,  an 
agreement  to  pay  10$.  at  the  time  of  discount  was  held  not 
usurious,  because  it  was  a  reasonable  compensation  for  dis- 
bursements^in  collection.  (Ex  parte  Henson,  1  Mad.  112.)  It 
is  pretty  plain  from  the  case,  however,  that  the  vice  chancellor 
would  have  held  even  this  transaction  usurious,  if  there  had 
been  a  loan.  In  more  familiar  terms,  one  owes  an  attorney  in 
the  country  one  thousand  dollars ;  he  brings  him  a  bill  on 
New- York  as  payment,  saying,  collect  it  and  charge  a  commis- 
sion of  five  per  cent,  over  and  above  your  regular  compensa- 
tion. The  attorney  does  so.  That  is  not  usury,  because  it  can 
obviously  be  nothing  but  compensation  j  and  a  man  may  al- 
ways pay  his  collector  what  premium  he  pleases.  To  this 
principle  all  the  cases  which  allow  to  the  lender  more  than 
seven  per  cent,  on  a  loan,  will  be  found  to  conform.  They 
are  the  most  common  in  respect  to  banks,  which  are  indulged 
in  taking  a  small  commission  for  remittances.  Yet  this  must 


ALBANY,  JANUARY,  1848.  241 


Kctchum  t.  Barber. 


be  clearly  for  services,  or  it  will  be  usury.  (See  Baynes  T. 
Fry,  15  Vesey,  120 ;  M'Kesson  fy  Co.  Y.  M 'Dowell,  4  Dev.  f 
Bat.  120 ;  Williams  v.  Hance,  7  Paige,  581 ;  Campbell  T. 
Shields,  6  Leigh,  517.) 

In  the  case  at  bar,  however,  the  plaintiff  departed  from  the 
character  of  broker.  Burr  was  the  broker,  or  driver  of  the 
bargain,  and  received  commission  as  such  over  and  above  what 
was  paid  to  the  plaintiff.  He  does  not  mention  the  amount. 
It  is  presumed  that  this  did  not  exceed  the  half  per  cent,  per 
annum  allowed  by  the  statute.  If  more,  he  was  himself  guilty 
of  usury.  Any  assistance  in  procuring  a  loan,  is  the  driving 
of  a  bargain  within  the  statute  of  brokers.  This  was  express- 
ly held  in  Pryce  v.  Wilkinson,  before  cited. 

Thus  has  the  statute  fenced  the  borrower  against  the  gripe 
of  the  lender,  and  against  that  of  the  broker.  But  it  is  insist- 
ed there  is  yet  an  intermediate  character  to  which  the  statute 
does  not  extend.  This  is  the  guarantor  for  the  borrower,  or 
the  seller  of  his  endorsement.  I  have  already  noticed  the 
practical  effect  of  stich  a  distinction  both  upon  the  lender  and 
borrower ;  and  will,  for  the  present,  only  ask,  of  what  use  to 
the  necessitous  man  are  statutory  provisions  in  his  favor,  if  the 
distinction  be  allowed  ?  Clearly  no  more  than  a  change  in  the 
person  of  his  oppressor.  He  can  get  money  at  seven  per  cent, 
of  one,  if  he  will  pay  an  undefined  premium  to  Mother  for  a 
loan  of  the  credit  on  which  it  is  to  be  obtained.  According  to 
the  homely  adage,  he  is  enabled  to  "jump  out  of  the  frying 
pan  into  the  fire." 

The  plaintiff  claims  that  he  sold  his  guaranty  ;  and  I 
suppose  desires  to  be  considered  as  on  a  footing  with  a  factor 
and  commission  merchant  del  credere.  I  have  already  noticed 
the  principle  on  which  commission  is  allowed  to  the  factor. 
It  is  enough  to  repeat,  that  the  plaintiff  was  not,  in  the  transac- 
tion before  us,  either  a  factor  or  broker.  On  the  contrary,  re- 
garding him  for  the  present  as  a  guarantor,  he  became  such  at 
the  instance  of  the  borrower  in  order  to  obtain  the  loan  from 
the  bank.  I  know  it  has  been  laid  down  that  "  a  charge  for 

VOL.  IV.  31 


\ 
242       CASES  IN  THE  SUPREME  COURT. 

Ketchum  v.  Barber. 

guarantying  the  payment  of  bills  when  unconnected  with  a  loan 
by  the  party  making  it,  is  not  usurious."  {Chit,  on  Bills,  101, 
ed.  o/*!839.)  On  looking  at  the  case  (Lee  v.  Cass,  1  Taunt. 
511)  cited  by  Chitty,  the  proposition  to  this  unqualified  ex- 
tent will  be  found  not  sustainable  by  it.  On  the  contra- 
ry, in  Lee  v.  Cass,  the  guaranty  being  for  the  benefit  of  the 
borrower,  the  premium  paid  by  him  for  securing  his  paper  by 
the  guaranty  was  expressly  declared  to  be  usurious  ',  and  an 
action  of  debt  grounded  on  the  statute  was  maintained.  It  is 
true,  as  we  have  seen,  that  a  creditor  may  give  a  premium  for 
a  guaranty  or  insurance  of  his  debt.  (Ex  parte  Adney,  Cowp. 
460  •  Oakley  v.  Boorman.,  21  Wend.  588  j  Per  Holt,  C.  J.  in 
Bartlett  v.  Vinor^  Carth.  251,  252.)  No  one  would  deny  that 
he  may  get  his  debt  insured  as  well  as  his  house.  But  no  case 
was  cited  on  the  argument,  and  I  am  aware  of  none,  holding 
that  a  debtor  may  hire  another  to  procure  forbearance  by  a 
guaranty,  at  a  premium  beyond  seven  per  cent,  per  annum,  if 
at  any  premium.  If  the  guarantor  will  take  the  place  of  the 
debtor  for  that,  very  well.  It  makes  no  difference  whether 
he  buy  the  debt,  or  become  surety  and  take  it  by  eventual  sub- 
rogation. Nor  does  it  differ  the  debtor  that  he  is  paying  seven 
per  cent,  to  one  or  the  other ;  and  he  pays  no  more  to  the 
guarantor  if  he  absolutely  assume  the  debt.  Otherwise,  if  a 
man  lend  his  collateral  security  at  a  premium  from  the  debtor, 
leaving  him  still  to  pay  the  principal  and  interest.  In  either 
case,  what  does  the  guarantor  advance  for  the  delay  ?  The 
original  debt  and  interest.  What  is  the  consequence  1,  Either 
conventionally  or  by  legal  effect,  the  debt  becomes  due  to  the 
guarantor,  with  the  interest.  He  thus  becomes  a  creditor  in 
consequence  of  the  forbearance,  not  only  for  all  the  money 
which  he  eventually  advances,  with  the  interest,  but  also  for 
whatever  premium  he  may  have  wrung  from  the  necessities  of 
the  debtor  on  account  of  the  delay  he  has  procured  for  him. 
The  only  difference  is,  that  instead  of  advancing  the  money  in 
the  first  instance,  and  paying  or  buying  the  debt  out  and  out 
for  the  premium,  he,  at  a  future  day,  brings  himself  into  the 


ALBANY,  JANUARY,  1843.  243 


Ketchum  ».  Barber. 


same  case.  The  doctrine  contended  for  is,  that  a  man  may  de- 
mand any  amount  of  premium  from  his  neighbor  for  securing 
his  debt.  Take  the  case  at  bar,  of  a  premium  at  the  rate  of 
seven  and  a  half  or  nine  per  cent,  per  annum,  leaving  the 
debtor  to  pay  interest  for  delay  on  the  original  debt.  The 
principle  would  extend  it  to  twenty  per  cent.,  because,  it  is  said, 
here  is  no  loan  of  money.  I  answer,  it  results  in  an  advance 
of  money.  The  negotiation  is  with  a  view  to  such  advance 
ultimately.  If  there  be  no  advance,  so  much  the  worse.  The 
surety  has  got  the  premium  for  the  mere  risk  that  by  chance 
he  might  have  been  obliged  to  advance.  He  gets  it  for  a  fic- 
titious or  potential  loan  of  money,  instead  of  an  actual  one , 
and  in  the  mean  time  he  has  lent  out  his  real  funds  to  others. 
Sanction  this,  and  the  statutes  become  laws  for  the  encourage- 
ment of  usury.  I  am  aware  a  learned  judge  once  said,  he  could 
see  no  objection  to  an  accommodation  endorser  of  a  bill  of  ex- 
change taking  a  premium  for  his  responsibility.  (13  John. 
47.)  He  was  answering  an  argument  that  such  was  the  usage. 
Under  what  qualifications  he  intended  the  remark  should  be 
taken,  it  is  impossible  to  say.  That  a  party  cannot  take  a  pre- 
mium for  becoming  surety  as  an  acceptor  or  maker,  he  himself 
held  in  the  very  case  he  then  had  under  discussion,  and  he  did 
not  point  out  the  reason  why  an  endorsement  formed  an  excep- 
tion. That  it  is  made  with  a  view  to  procure  and  advance 
money  for  the  principal,  ultimately  if  not  immediately,  there 
can  be  no  doubt ;  nor  that  the  premium  is  taken  for  such  ad- 
vance. .  He  remarked,  there  is  no  loan  of  money  directly  or 
indirectly.  I  have  endeavored  to  show  that,  in  such  a  transac- 
tion, there  is  an  indirect  loan ;  and  shall,  in  another  connec- 
tion, show  that  it  has  again  and  again  been  considered  such 
upon  authority.  When  the  question  in  Dunham  v.  Dey, 
wherein  the  concession  mentioned  was  made,  came  to  the  court 
of  errors,  Mr.  Emmet  insisted  that  the  concession,  if  law, 
would  overthrow  the  judgment  of  the  court  in  that  very  case. 
(Dunham  v.  Gould,  16  John.  370.)  It  was  not  repeated  in 
the  latter  case  ;  nor  was  it  pretended  on  the  argument  of  the 


244     CASES  i:\  THE  SUPREME  COURT. 


Kctchum  v.  Barber. 


case  now  before  us  that  the  dictum  has  the  sanction  of  any 
adjudged  case,  or  has  ever  been  repeated  elsewhere.  I  shall 
have  occasion  to  show  that  it  has  been  virtually  disregarded  in 
the  entire  course  of  the  authorities,  so  far  as  they  have  noticed 
the  question.  It  seems  to  be  agreed,  that  the  surety  can  in  no 
case  be  entitled  to  receive  any  thing  that  he  pays  beyond  the 
principal  and  legal  interest.  JSven  if  he  become  bound  and 
pay  usurious  interest  for  his  principal,  instead  of  receiving  it 
himself,  and  he  know  of  the  usury,  he  cannot  recover  on  an 
indemnity  bond  given  by  the  principal.  (Ord  on  Usury,  100, 
101  j  Com.  on  Usury,  196  to  198 ;  Ford  v.  Keith.,  I  Mass. 
Rep.  139 ;  see  also  Bryant  v.  Christie,  I  Stark.  N.  P.  Cas. 
329.)  Potkirfs  case,  (3  Leon.  63,)  seems  never  to  have  been 
overruled.  It  would  surely  be  a  wide  departure  should  we  al- 
low the  surety  to  pay  for  a  premium  and  recover  the  usury 
money  for  himself.  The  commission  of  two  and  a  half  per 
cent,  agreed  to  in  Colton  v.  Dunham,  (2  Paige,  267,)  was  for 
becoming  a  guarantor  of  moneys  borrowed  upon  respondentia, 
which  may  be  at  more  than  seven  per  cent.  (See  Peters  v. 
Warren  Ins.  Co.,  1  Story's  Rep.  463, 472.)  Beside,  the  legali- 
ty of  the  transaction  was  not  passed  upon.  Considering  the 
plaintiff,  therefore,  as  a  guarantor,  absolute  or  collateral,  will 
furnish  no  protection  against  the  imputation  of  usury. 

It  is  further  said,  that  the  plaintiff  himself  did  not  loan  money  ; 
and  so  there  cannot  be  usury.  It  is  not  denied  that  the  pres- 
ent statute  of  usury,  (1  R.  S.  760,  2d  ed.)  is  equally  compre- 
hensive with  the  former.  It  applies,  therefore,  to  a  loan  of 
money  not  only,  but  of  every  thing  that  is  of  money's  worth. 
This  was  said  in  so  many  words  by  Bayley,  J.  in  Parker  v. 
Ramsbottom,  (5  Bowl,  fy  Ryl.  151 ;  3  Barn.  4*  Cress.  257, 
270,  S.  C.)  The  plaintiff  would  hardly  be  willing  to  admit 
that  the  name  of  his  firm  on  which  the  premium  was  advanced 
was  not  money's  worth  ;  and  it  is  entirely  settled,  that  where  a 
man  puts  his  name  to  negotiable  paper  for  the  purpose  ot 
money  being  raised  upon  it,  there  is  a  loan  within  the  meaning 


ALBANY,  JA:  1313. 


Ketch  am  ».  Barber. 


of  the  statute  of  usury.  (See  Reynolds  v.  Doyle,  1  Mann,  tf 
Grang.  753.)  In  Kent  v.  Lowen,  (1  Camp.  177,)  the  defen- 
dant offered  proof  to  show  that  Coates  &  Co.  proposed  to  ac- 
commodate the  defendant  with  their  acceptance  at  three  months, 
upon  receiving  his  note  for  the  same  sum  at  ninety  days, 
together  with  two  and  a  half  per  cent,  commission.  Lord  Ellen- 
borough  told  the  jury  there  was  no  color  for  the  commis- 
sion ;  and  that  if  they  believed  the  evidence  made  out  the  case 
proposed,  they  were  bound  to  find  for  the  defendant,  which 
they  did.  This  case  was  recognized  as  laying  down  the  law 
correctly  in  Dunham  v.  Dey,  (13  John.  40.)  In  the  latter  case, 
the  parties  had  exchanged  notes  to  an  equal  amount,  the  plain- 
tiff charging  and  receiving  a  commission  of  two  and  a  half  per 
cent.  Yates,  J.  told  the  jury,  that  if  they  believed  this  was 
for  the  purpose  of  raising  money  at  a  greater  rate  of  interest 
than  seven  per  cent,  per  annum,  which  they  were  warranted 
to  infer,  such  intention  made  it  intrinsically  a  loan,  and  the 
transaction  was  usurious  and  void.  On  a  motion  for  a  new 
trial,  Spencer  J.  asked,  "  What  is  the  difference  between  a  man's 
lending  his  notes  to  raise  money  upon,  taking  more  than  legal 
interest,  and  lending  his  money  ?  1  confess  1  perceive  no  other 
difference  than  this  :  that  the  borrower  of  the  notes  must  prob- 
ably pay  more  usury,  to  get  them  converted  into  cash.  But 
the  transaction  is  substantially  a  lending  of  money  ;  and  I 
agree  with  the  defendant's  counsel,  that  if  this  device  be  tole- 
rated, the  statute  is  judicially  repealed."  The  question  in  that 
case  came  before  the  court  of  errors,  (Dunham  v.  Gould,  16 
John.  374,)  where  Kent,  chancellor,  delivered  the  opinion  of 
the  court.  He  said  :  "  The  statute  applies  as  well  to  a  loan  of 
notes  on  usurious  interest,  as  to  a  loan  of  cash."  Again,  he 
said  :  "  Here  was  nothing  more  than  a  simple  exchange  of  notes, 
instead  of  a  loan  of  cash.  This  was  a  clear  evasion  of  the 
statute  against  usury."  In  Dcy  v.  Dunham,  (2  John.  Ch.  Rep. 
182,  193,)  the  same  transaction  is  called  by  Chancellor  Kent  a 
lending  of  credit  and  security ;  and  he  loo  cited  Kent  v.  fawen 
with  approbation.  Fanning  v.  Dunham,  (5  John.  Ch.  Rep. 


246  CASES  IN  THE  SUPREME  COURT. 

Ketchum  ».  Barber. 

122,  134,)  brought  up  the  same  question,  as  well  on  a  com- 
mission for  endorsements  as  for  making  notes.  The  commission 
was  two  and  a  half  per  cent,  with  the  liberty  of  one  renewal. 
The  loan  of  endorsements  was  placed  by  the  chancellor  on  the 
same  footing  with  that  of  notes  in  the  other  form.  Speaking 
of  both,  he  says  :  "  Instead  of  being  a  cash  advance,  it  was  a 
loan  of  his  credit ;"  and  he  declared  both  to  be  usurious,  where 
the  notes  had  but  four  months  or  less  to  run.  There  was  an 
exchange  of  notes,  or  of  endorsements  for  notes,  and  in  this  re- 
spect the  case  stood  on  the  same  footing  as  that  of  Dunham  v. 
Dey,  and  Dunham  v.  Gould.  In  Steele  v.  Whipple,  (21  Wend. 
103,)  we  followed  that  case,  in  also  holding  that  the  endorse- 
ment of  a  note  for  the  purpose  of  raising  money,  was  a  loan  of 
credit ;  and  that  taking  a  premium  for  the  loan  was  usurious. 
I  there  remarked  :  "  I  have  no  hesitation  in  saying  that  a  man 
can  no  more  lend  his  endorsement  for  a  compensation  beyond 
seven  per  cent.,  than  his  money.  Though  it  is  not  cash  itself, 
it  is  an  equivalent."  This  was  thought,  on  the  argument  of 
the  case  before  us,  to  be  a  new  application  of  the  statute  of 
usury.  I  there  stated  that  I  thought  the  case  of  Kent  v.  Lowen 
contained  the  true  doctrine,  and  was  in  no  way  distinguishable 
in  principle.  I  will  add,  that  I  thought  the  proposition  too 
plain  to  require  much  support  from  authority  ;  and  still  con- 
sider it  so.  In  looking  through  the  books,  I  find  many  authori- 
ties— indeed  all  that  go  against  indirect  usury — sustaining  the 
same  principle.  I  have  now  noticed  a  few  which  are  circum- 
stantially in  point,  for  I  am  unable  still,  as  I  was  then,  to  dis- 
cover any  colorable  distinction  between  receiving  a  premium 
of  more  than  seven  per  cent,  per  annum  for  lending  credit  by 
accommodation  acceptances  or  making  notes,  and  endorsing. 
They  are  each  equally  loans  of  credit ;  and  the  language  of 
the  courts  in  Dunham  v.  Dey,  Dunham  v.  Gould,  and  Fanning 
v.  Dunham^  applies  mutatis  mutandis  in  all  respects  to  the 
loan  of  an  endorsement.  The  king's  bench  have  declared  that  a 
loan  of  acceptances,  at  a  premium  of  more  than  five  per  cent, 
per  annum,  is  void.  This  court  and  the  court  of  errors 


ALBANY,  JANUARY,  1848.  247 


Ketchum  r.  Barber. 


have  declared  the  same  thing  as  to  a  loan  of  notes  made  by  the 
lender ;  the  court  of  chancery,  the  same  thing  as  to  the  loan  of  en- 
dorsements ;  and  this  we  repeated  in  Steele  T.  Whipple.  All 
three  are  but  different  modes  of  becoming  security.  The  only 
difference  is,  that  on  an  exchange  of  notes,  acceptances  or  en- 
dorsements, the  transactions  are  not  on  their  face  loans  of  ac- 
commodation paper.  (Fell  on  Commercial  Guaranties,  247.) 
The  paper  of  one  party  is  a  valuable  consideration  for  that  of 
the  other  ;  and  there  is  some  plausibility  in  such  a  case  for  say- 
ing there  is  no  loan.  Yet  the  courts  have  not  allowed  such  a 
construction  to  prevail.  Spencer  J.  said,  it  would  be  a  judicial 
repeal  of  the  statute.  In  Steele  v.  Whipple^  and  in  the  case  at 
bar,  the  loan  of  credit  was  undisguised.  It  was  not  even  color- 
ed by  an  exchange  of  paper.  To  sanction  such  loans  would 
be  an  act  of  repeal  still  more  open  and  effectual.  Usury  might 
dismiss  its  devices  and  shifts,  leave  its  hiding  places  and  walk 
abroad  in  the  public  streets.  (See  also  Flower  v.  Millaudon, 
19  Louis.  Rep.  187,  8.)  In  Dunham  v.  Gould,  it  was  pro- 
posed to  show  that,  according  to  a  usage  of  merchants,  where 
one  advances  his  note  in  exchange  for  another,  the  former  may 
charge  a  commission  of  two  and  a  half  per  cent,  on  the  note  so 
given  in  exchange  ;  and  that  the  like  usage  existed  as  to  the 
endorsing  of  notes  and  bills  of  exchange,  and  the  executing  of 
custom  house  bonds.  Chancellor  Kent  answered,  that  it  was  per- 
fectly idle  to  talk  of  such  a  custom.  He  said,  "  If  there  were 
such  a  local  usage  in  New- York,  it  would  be  null  and  void, 
and  could  not  be  set  up  as  a  cover  or  pretext  to  trample  down 
the  law  of  the  land."  That  accommodation  paper  is  always 
considered  as  a  loan,  may  be  seen  in  Reynolds  v.  Doyle,  (1 
Mann.  $  Grang.  753.) 

In  forming  my  conclusions  upon  the  transaction  in  question, 
I  have  disregarded  the  distinction  which  has  been  some  times 
taken  by  the  court  of  chancery  of  this  state,  with  regard  to  an 
exchange  of  notes.  The  distinction  is  this  :  that  on  A.  giving 
his  note  to  B.,  and  receiving  one  of  the  same  amount  from  BM 
A.  may  exact  a  commission,  if  it  do  not  exceed  the  rate  of  in- 


248  CASES  IN  THE  SUPREME  COURT. 


Ketchum  ».  Barber. 


terest  at  seven  per  cent,  per  annum  for  the  time  A.'s  note  has 
to  run.  Thus,  if  A.'s  note  run  only  four  months,  he  may  take 
a  commission  of  two  per  cent.,  but  not  two  and  a  half.  (Fan- 
ning v.  Dunham^  5  John.  Ch.  Rep.  122,  134.)  If  his  note  run 
six  months,  he  may  exact  two  and  a  half,  and  even  three  and  a 
half  per  cent. ;  (Dey  v.  Dunham,  2  John.  Ch.  Rep.  182,  193  ;) 
and  if  nine  months,  five  per  cent.  (Bullock  v.  Boyd,  1  Hoffm. 
Ch.  Rep.  298.)  I  have  disregarded  this  distinction  for  several 
reasons.  In  the  first  place,  if  the  present  transaction  were  an 
exchange,  and  not  a  naked  loan  of  credit,  it  would  be  usury 
within  that  distinction.  Secondly,  it  was  not  an  exchange,  but 
a  mere  loan  of  credit ;  and,  thirdly,  I  am  satisfied  the  distinc- 
tion itself  was  inadvertently  made.  It  is  supported  by  no  pre- 
cedent, but  is  contradicted  by  many,  and  violates  the  laws  of 
finance  and  commercial  dealing.  The  cases  cited  have  ad 
judged  that  a  good  note  at  nine  months,  intended  for  discount, 
is  worth  more  than  a  like  note  at  four  months,  or  even  thirty 
days  j  and,  for  that  reason,  they  allow  a  commission  to  the  len- 
der, large  in  direct  proportion  to  the  time  which  the  note  has 
to  run  ;  whereas  the  law  of  discount,  if  it  allowed  a  commis- 
sion at  all,  would  enlarge  it  inversely  to  that  time.  (M'Cul- 
loch's  Diet,  of  Com.  tit.  Discount.)  They  allow  a  premium  of 
seven  per  cent,  on  a  note  at  one  year,  and  twenty-one  per  cent, 
on  a  note  for  three  years  &c.j  but  nothing  on  a  note  payable 
instanter.  By  the  law  of  discount,  the  latter  note  would  be 
worth  par  ;  the  year  note  seven  per  cent,  less  ;  the  three  year, 
twenty-one  per  cent,  less,  and  so  in  that  proportion.  An 
actual  discount  in  gold  or  silver  is  better  than  either  ;  and  yet 
all  the  cases  hold,  that  should  A.  pay  specie,  instead  of  his 
note  for  the  same  time  with  B.'s,  and  receive  a  premium  be- 
yond the  discount  on  B.'s,  it  would  be  usury.  In  short,  the 
effect  is  to  charge  B.  with  seven  per  cent,  for  a  note  at  a  year, 
on  which  he  can  obtain  in  the  market  ninety-three  dollars  only, 
the  borrower  thus  being  compelled  to  pay,  in  the  whole,  four- 
teen per  cent,  per  annum.  To  apply  the  authorities,  it  is  ne- 
cessary to  look  at  the  real  nature  of  an  exchange  of  paper.  It 


ALBANY,  JANUARY,  1843.  249 

Kctchum  v.  Barber. 


is  a  transaction  of  perfect  equality,  on  an  agreement  either  to 
exchange  notes,  acceptances  or  endorsements,  exactly  the  same 
as  to  times  and  sums,  or  to  equalize  the  transaction  in  some 
other  form,  so  that  one  shall  advance  no  more  money  than  the 
other.  The  parties  purchase  each  other's  paper ;  and  A.,  the 
lender,  may  be  considered  as  discounting,  by  his  own  paper, 
the  paper  of  B.,  the  borrower.  This  A.  may  do,  if  his  paper 
be  the  shortest,  say  six  months  only,  B.'s  being  at  a  year.  The 
discount  taken  would  then  be  by  A.  three  and  a  half  per  cent., 
because  his  note  would  be  worth  at  the  bank  three  and  a  half 
per  cent,  more  than  B.'s  would  be  to  A.  Suppose  A.  to  go 
one  step  further,  and  give  his  note  for  cash  down ;  he  may 
take  the  whole  seven  per  cent.,  because  his  note  will  bring  that 
amount  in  market.  It  is  then  the  same  as  cash ;  but  all  the 
authorities  hold  that,  even  in  this  most  advantageous  advance 
to  B.,  the  purchaser  can  take  no  more  than  the  simple  inter- 
est. The  rule  is,  shortly,  this  :  that  a  note  made  to  raise  mo- 
ney upon,  and  discounted  at  more  than  simple  interest,  is  usu- 
rious and  void.  (Bayley  on  Bills,  575,  Am.  ed.  of  1836,  and 
the  cases  there  cited.)  This  being  so,  it  follows,  a  mttlto  for- 
tiori, that  giving  a  note  payable  at  a  remote  day,  worth  on  its 
face  seven  or  twenty-one  per  cent,  less  than  the  note  discount- 
ed, or  taken  in  exchange  for  it,  is  usury.  The  transaction  in 
Matthews  v.  Griffiths,  (Peake's  JV.  P.  Cos.  200,)  was  an  ex- 
change of  notes.  A  bill  at  thirty  days,  belonging  to  Mrs. 
Stewart,  was  discounted  by  the  defendants  at  the  usual  dis- 
count, by  giving  their  note  in  exchange  payable  three  days 
after  sight ;  and,  because  they  did  not  also  deduct  the  interest 
for  the  three  days,  the  exchange  was  holden  by  Lord  Kenyon 
to  be  unequal,  and  the  transaction  usurious.  (Maddock  v. 
Hammett,  1  T.  R.  180,  181,  S.  P.)  So  far  from  the  lenders 
of  the  exchange  notes  being  allowed  to  charge  a  commission 
for  the  time  their  notes  had  to  run,  they  were  punished  because 
they  did  not,  for  that  very  reason,  let  their  notes  go  for  less 
than  their  face.  If  the  opposite  principle  were  to  prevail,  then 
a  bank,  by  refusing  its  bills  and  giving  its  post  notes,  might 
VOL.  IV.  32 


250  CASES  IN  TtfE  SUPREME  COURT. 

Ketchum  v.  Barber. 


exact  not  only  the  interest  as  a  discount,  but  also  a  premium  of 
seven  per  cent,  per  annum  for  the  time  its  notes  had  to  run ;  and 
the  longer  the  post  note,  the  larger  the  premium.  I  need  hardly 
say  that  such  dealing  was  condemned  as  usurious  by  the  supreme 
court  of  the  United  States,  in  Gaitfar  v.  Meek.  $  Farm.  Bank 
of  Georgetown,  (1  Pet.  37,  41 ;)  and  State  Sank  of  Eliza- 
beth v.  JJyers,  (2  Hoist.  130.)  But  the  transaction  is  equally 
•within  another  class  of  cases.  A  man  wanting  money  is  put 
off  with  goods  or  stock  at  more  than  they  will  fetch  in  market. 
This  is  usurious,  because,  in  effect,  the  lender  gets  more  than 
seven  per  cent.  (Com.  on  Usury,  94, 104.)  In  the  same  man- 
ner, the  borrower  wanting  money  is  put  off  with  a  note  at 
more  than  it  is  worth.  The  effect  is  identical.  The  trouble 
of  collecting  is  no  more  than  in  the  case  of  an  ordinary  dis- 
count j  the  contingency  of  the  borrower's  death  or  insolvency 
is,  in  no  case,  a  legitimate  foundation  for  demanding  extra  inter- 
est; (Colton  v.  Dunham,  2  Paige,  272,  3  j  Taylor  v.  Bell,  2 
Vern.  171 ;)  the  pretence  of  remittance  is  out  of  the  case  ;  and 
there  is  no  commission  del  credere.  It  cannot  be  brought  with- 
in any  of  the  authorities  which  allow  commissions  by  way  of 
compensation  for  services. 

I  have  said  that,  in  the  case  at  bar,  there  was  no  exchange  ; 
but  only  the  naked  loan  of  an  endorsement.  On  the  ground 
taken,  the  same  commission  paid  the  plaintiff  might  also  have 
been  exacted  by  Barber  and  Leonard  the  first  endorsers ;  and 
in  a  line  of  several  endorsers,  the  borrower  may,  in  this  way, 
before  he  reaches  the  bank,  be  stripped  of  half  of  his  anticipa- 
ted loan. 

The  relation  arising  between  a  man  who  endorses  or  puts 
his  name  to  paper  for  the  accommodation  of  another,  is  that  of 
surety  and  principal.  (Fell  on  Com.  Guar.  238,  9,  Jim.  ed. 
of  1825  ;  Houle  v.  Baxter,  3  East,  177.)  The  nature  of  the 
obligation  is,  that  there  is  nothing  due  from  the  principal  till 
the  surety  shall  have  actually  paid  the  money.  (Fell  on  Com. 
Guar.  238,  9,  Jim.  ed.  of  1825  ;  Reynolds  v.  Doyle,  1  Mann,  # 
Grang.  753.)  On  doing  so,  he  can  recover  nothing  beyond  his 


ALB  A  .NY,  JA.NI/AI.Y,  1843. 


261 


Kctchum  r.  Barber. 


principal,  and  his  interest  from  the  time  of  payment,  with  costs. 
(Fell  an  Com.  Guar.  256,  Jim.  ed.  of  1825  j  Hayden  r.  Cabot, 
17  Mass.  Rep.  169.)  The  surety  has  precisely  the  same  rights 
that  the  creditor  has.  ( Fell  on  Com.  Guar.  248, 249.)  On  pay- 
ing the  debt,  he  cotoes  equitably  into  the  shoes  of  the  creditor. 
He  is  the  owner  of  the  debt,  and  a  court  of  chancery  will  de- 
cree that  he  be  actually  substituted,  so  as  to  take  all  the  reme- 
dies of  the  creditor.  (Id.)  Why  is  the  surety  thus  limited  at 
law  and  in  equity  to  his  actual  advances  of  money  ?  Because, 
in  truth  and  honesty,  he  is  out  of  pocket  to  that  extent  only. 
The  money  he  pays  is  not  due  on  his  entering  into  the  obliga- 
tion j  perhaps  it  will  never  fall  due,  and  the  intent  of  both  par- 
ties is,  that  it  never  shall.  It  may  possibly  fall  due  at  a  future 
day  on  a  condition  yet  to  happen — the  default  of  the  principal 
and  payment  by  the  surety.  Up  to  that  time  there  is  no  debt 
at  all,  but  the  bare  possibility  of  a  debt.  The  surety  contracts 
to  make  a  prospective  loan  or  advance  which,  in  its  own  na- 
ture, will  draw  interest  from  the  time  when  it  is  made ;  and 
cannot  do  so  before.  There  is  a  loan  of  credit  which  may  ma- 
ture into  a  loan  of  money  ;  but  until  it  do  so,  it  is  a  barren 
loan,  an  act  of  courtesy,  against  which,  to  be  sure,  an  indemnity 
or  counter  security  may  be  taken  in  any  form  j  but  nothing 
more,  until  it  amount  to  an  advance  of  money.  To  constitute 
usury,  there  need  not  be  a  technical  loan.  The  statute  speaks 
of  the  loan  or  forbearance  of  money.  The  contract  to  advance 
may  be  in  any  form,  present,  future,  absolute  or  contingent. 
Any  contrivance,  says  Lord  Mansfield,  if  it  be  in  substance  a 
loan,  comes  under  the  word  indirectly  ;  and  when  that  is  so, 
the  wit  of  man  cannot  make  shift  to  take  the  case  out  of  the 
statute.  (Floyer  v.  Edwards,  Cowp.  114, 115.)  The  practice 
of  demanding  a  premium  from  the  borrower,  for  the  mere  loan 
of  a  responsible  name  on  which  to  raise  money,  is  equally 
within  the  principle  of  the  statute  with  an  extra  premium  for 
the  money  itself.  The  name  is  a  sine  qua  nan  with  the  money- 
lender j  and  the  borrower  is  prepared  to  make  the  requisite 
sacrifice  in  order  to  obtain  it.  The  statutes  of  usury,  says 


252       CASES  IN  THE  SUPREME  COURT. 


Kctchum  v.  Barber. 


Lord  Mansfield,  were  made  to  protect  needy  and  necessitous 
persons,  who,  from  the  pressure  of  their  distress,  are  ready  to 
come  to  any  terms.  (Browning  v.  Morris,  Cowp.  792.) 
Hence,  no  case  ever  has  allowed,  and,  in  justice  to  the  statutes 
of  usury,  never  can  allow  exactions  for  the  mere  act  of  becom- 
ing security.  The  practice  was  put  down  at  once  in  Lee  v. 
Cuss,  (1  Taunt.  511.)  In  that  case,  Cass  refused  to  discount 
a  bill,  unless  the  borrower  would  allow  him  to  guaranty  the 
payment  at  three  and  a  half  per  cent.  The  borrower  endorsed 
the  bill  accordingly,  paying  that  sum.  Cass's  counsel  insisted 
that  the  premium  was  allowable  because  the  guaranty  was  abso- 
lute, and  there  was  no  forbearance.  Mansfield,  Ch.  J.  said, 
there  was  forbearance  till  the  bill  became  due  ;  and  the  guar- 
anty would  not  protect  the  borrower  against  a  bonafide  holder, 
though  he  admitted  the  borrower  might  recover  over.  He  also 
said,  if  the  objection  were  valid,  it  would  give  complete  facili- 
ty and  security  to  usury.  The  case  at  bar  is  much  stronger. 
The  forbearance  itself  was  merely  colorable  ;  not  on  money 
advanced,  but  on  money  possibly  to  be  advanced  5  for  the  en- 
dorsement was  collateral,  not  absolute,  and  the  plaintiff  had  the 
security  of  both  maker  and  endorsers,  that  whatever  he  might 
be  compelled  to  advance  should  be  refunded.  The  notes  were 
payable  at  his  own  bank,  obviously  intended  for  discount,  and 
one  of  them  actually  discounted  there.  For  such  a  risk  he 
charges  the  borrower  seventy-five  to  ninety  dollars.  The 
transaction  is,  perhaps,  not  quite  so  gross  and  unblushing  as 
that  in  Steele  v.  Whipple  ;  but  the  principle  is  the  same,  what- 
ever the  amount.  A  man  may  take  discount  in  advance,  and, 
if  you  please,  interest  in  advance  on  short  paper,  where  he 
makes  an  actual  disbursement ;  but  was  it  ever  heard  that  he 
might  do  the  same  thing  in  anticipation  of  a  disbursement  which 
he  may  possibly  be  obliged  to  make,  which  he  will  probably 
never  make  at  all,  and  which  if  he  do,  must  be  reimbursed  by 
others  against  whom  he  holds  counter  security  ?  A  man  can- 
not take  interest  for  a  debt  not  yet  due.  I  know  the  rule  is 
clogged  with  some  qualifiration  where  the  debt  is  absolute  ; 


ALBANY,  JANUARY,  1843.  £53 


Kctchum  t>.  Barber. 


but  no  exception  can  ever  be  allowed  where  it  is  inchoate,  and 
the  borrower  is  already  paying  interest  to  another.  It  is 
shameful  and  scandalous  oppression  on  its  face.  By  what  rule 
can  an  endorsement,  and  the  consequent  contingent  forbearance, 
be  estimated  ?  Assuming  the  counter  security  to  be  good,  as 
we  always  must,  and  the  endorser  always  does,  the  whole  is  a 
mere  form.  It  costs  him  nothing,  and  it  never  will  cost  him 
more  by  way  of  forbearance  than  he  can  recover  over.  He 
indeed  lends  a  chose  in  action  ;  but  the  money  he  may  advance 
under  it,  with  interest  on  that,  is  to  be  restored  at  all  events. 
If  he  take  or  contract  for  more,  it  is  usury  within  all  the  au- 
thorities. It  is  so  within  the  express  terms  of  Kent  v.  Lowen,  (1 
Campb.  177,)  which  has  never  been  questioned.  The  precise 
point  was  there  decided,  unless  we  run  into  the  absurdity  of  say- 
ing that  an  acceptance  is  worth  less  than  an  endorsement.  Coates 
&  Co.,  in  terms,  lent  their  acceptance  for  three  months  on  re- 
ceiving counter  security  at  three  months,  and  charged  a  com- 
mission. Park,  as  counsel,  put  the  very  point.  He  said,  the 
commission  was  to  be  considered,  not  as  interest,  but  as  a  com- 
pensation for  trouble  in  accepting  the  bill  and  accommodating 
ihe  defendant.  Per  Lord  Ellenborough  :  There  is  no  color  for 
the  commission,  and  the  two  and  a  half  per  cent,  must  be  con- 
sidered as  usurious  interest.  The  case  was  not  placed  upon 
the  lime,  but  on  the/etc^  that  any  commission  at  all  was  taken. 
The  borrower  had  to  pay  interest  to  another  on  getting  the 
bill  discounted,  for  the  three  months  it  had  to  run.  By  pay- 
ing any  thing  for  the  loan  of  the  bill  itself,  he  was  charged 
with  extra  interest.  He  secured  the  lender  of  the  bill  a  repay- 
ment of  such  principal  as  he  might  be  obliged  to  pay  on  his 
acceptance  becoming  due,  with  interest  on  such  contingent  ad- 
vance ;  and  that  was  all  to  which  he  was  entitled.  The  case 
is  quatuor  pedibus  with  the  present.  I  mentioned  and  stated 
this  case  before,  in  another  connection.  We  saw  then,  and  I 
will  now  add,  that  it  was  held  to  be  law  by  this  court  in  Dun- 
ham v.  Dey,  by  the  court  of  chancery  in  Dey  \.  Dunham,  and 
by  this  court  again  in  Steele  v.  Whipple.  The  case  is  natural- 


254  CASES  IN  THE  SUPREME  COURT. 


Ketchum  v.  Barber. 


ized  here,  without  qualification  j  nor  can  human  ingenuity  dis- 
tinguish it  from  the  case  at  bar,  farther  than  to  say  that  this  is 
still  stronger  against  the  plaintiff.  That  was  a  direct  guaranty  ; 
this  a  collateral  one.  In  that  case  the  plaintiff  was  an  inno- 
cent holder ;  in  this,  he  is  the  very  party  to  the  usury. 

I  am  aware  the  modern  notion  on  the  subject  of  usury  is  so 
latitudinary,  that  judges  are  put  on  the  defensive  for  holding 
almost  any  thing  to  be  within  the  statute.  Lord  Kenyon 
thought  he  should  be  so,  on  deciding  Matthews  v.  Griffiths; 
and  it  turned  out,  as  appears  by  what  he  afterwards  said  in 
Maddock  v.  Hammett,  that  he  was  not  disappointed.  One  can 
scarcely  see  why  he  should  have  been  censured,  unless  for  re- 
fusing to  wink  at  small  plunder.  Even  that  case,  when  fairly 
understood,  will  be  seen  never  to  have  been  shaken.  But  above 
all,  I  protest  against  a  similar  censure  upon  judges  for  repudiat- 
ing such  bold  and  bungling  usury  as  was  disclosed  in  jfcewf  v. 
Lowen  and  Steele  v.  Whipple.  In  all  cases  like  them,  the 
transaction  is  mathematically  usurious.  Res  ipsa  loquitur. 
Where  there  is  a  dispute  about  the  real  character  of  the  trans- 
action— as,  whether  it  be  a  sale,  instead  of  a  loan,  forbearance  or 
device — the  question  is  put  to  the  jury.  But  to  such  a  case  as 
Kent  v.  Loweri,  and  various  others  which  I  have  noticed, 
every  one  will  apply  the  language  of  Lord  Kenyon  in  Mat- 
thews v.  Griffiths.  "  Now  the  cause  is  over,"  said  he,  "  1 
must  say  one  word  for  myself.  I  am  most  clearly  of  opinion 
that  this  is  usury.  Whether  the  party  (the  borrower  of  the  bill) 
consented  or  not,  can  make  no  difference.  All  men,  lawyers 
or  not  lawyers,  must  agree  on  this  case.  It  is  so  clear  that  no 
two  men  in  the  profession  can  entertain  different  opinions 
on  it." 

On  the  whole,  I  differ  with  the  referee.  He  considered  the 
transaction  between  Muir  by  his  agent  Burr,  and  the  plaintiff,  as 
the  sale  of  a  guaranty  or  endorsement.  My  own  view  is,  that 
it  was  a  loan  of  credit,  at  a  usurious  rate  of  interest ;  and 
that,  therefore,  the  notes  in  question,  having  come  into  the 
plaintiff's  hands  as  a  further  security  or  extension  of  the  loan, 


ALBANY,  JANUARY,  1843.  255 

Seymour  p.  Strong. 

are  void.     I  am  of  opinion  that  the  report  should  be  set  aside, 
and  a  rehearing  granted  ;  the  costs  to  abide  the  event. 

Motion  denied. 


SEYMOUR  and  others,  ex'rs.  &c.  vs.  STRONG. 

Before  a  witness'  competency  can  be  deemed  to  have  been  restored  by  a  release, 
something  more  than  a  constructive  delivery  of  the  release — i.  e.  a  delivery  to  a 
third  person  for  the  use  of  the  witness — must  be  shown.  It  should  at  least  appear 
that  he  knew  of  the  release  at  the  time  of  giving  his  testimony. 

A  witness,  prima  facie  interested,  having  been  examined  under  a  commission,  it 
was  shown  at  the  trial  that  the  commission,  together  with  a  release  of  the  wit- 
ness'  interest,  were  enclosed  to  the  commissioner  in  one  wrapper,  accompanied 
by  directions  to  deliver  the  release  to  the  witness  before  swearing  him  ;  and  that 
the  release  was  afterwards  annexed  to  the  commission  and  returned  with  it  • 
Held,  sufficient  evidence  of  the  delivery  of  the  release  to  authorize  the  deposi- 
tion to  be  read. 

C.  covenanted  to  assign  to  a  bank,  bonds  and  mortgages  on  real  estate  to  the 
amount  of  $13,000,  payable  in  five  years,  with  interest  scmuannually,  and  to 
guaranty  the  payment  of  them ;  in  consideration  whereof,  the  bank  agreed  to 
transfer  to  C.  certain  stock  to  the  amount  of  §6500  at  its  nominal  value,  but 
which  was  then  twenty-five  per  cent,  below  par,  and  to  pay  him  the  balance  in 
money.  Afterwards,  the  bonds  and  mortgages  not  having  been  assigned,  tho 
bank  transferred  the  stock  and  paid  the  money  on  receiving  two  notes  for  $6500 
each,  agreeing  to  take  the  bonds  and  mortgages  in  payment,  if  delivered  before 
the  notes  became  due.  Held,  in  an  action  upon  one  of  tho  notes,  that  tho  trans- 
action was  usurious  ;  and  a  verdict  finding  it  otherwise  was  set  aside. 

ASSUMPSIT  on  a  promissory  note,  tried  at  the  Monroe  circuit, 
in  December,  1841,  before  DAYTON,  C.  Judge.  The  note  was 
for  $7005,67,  dated  December  26th,  1836,  and  payable  to  the 
Bank  of  Rochester,  or  bearer,  three  months  after  date.  The 
defence  was  usury.  At  the  trial,  the  case  proved  was  this  : 
On  the  26th  of  January,  1836,  a  written  agreement  was  enter- 
ed into  by  Daniel  Collins  and  the  Bank  of  Rochester,  by  which 
the  former  covenanted  to  assign  to  the  bank,  bonds  and  mortga- 
ges on  real  estate  to  the  amount  of  $13,000,  payable  in  five 
years,  with  interest  semi-annually,  and  to  guaranty  the  payment 
of  the  mortgages  j  in  consideration  whereof,  the  bank  agreed  »o 


256  CASES  IN  THE  bUPKEME  COURT. 


Seymour  v.  Strong. 


assign  to  Collins  130  shares  of  stock  in  the  Rochester  Cotton 
Manufacturing  Company,  (the  nominal  value  of  which  was 
$6500,)  and  pay  him  the  sum  of  $6500  in  money.  The  bonds 
and  mortgages  not  having  been  assigned,  another  agreement 
was  made  between  the  parties  on  the  27th  of  February  follow- 
ing, which  was  written  below  the  other  on  the  same  piece  of 
paper.  By  this  last  agreement,  after  reciting  that  Collins  had 
given  two  promissory  notes  for  $6500  each,  one  endorsed  by 
Strong  (the  defendant)  and  the  other  by  one  Frost,  payable 
ninety  days  from  date  at  a  bank  in  the  city  of  New-York,  it 
was  stipulated  that  the  Bank  of  Rochester  would  receive  bonds 
and  mortgages  in  payment  of  said  notes,  if  delivered  within  the 
time  said  notes  had  to  run.  The  notes  mentioned  in  the  agree- 
ment bore  interest  from  date,  and,  when  they  were  given,  the 
bank  assigned  the  130  shares  of  stock,  and  paid  Collins  $6600 
in  cash.  This  assignment  of  stock  and  payment  of  money 
formed  the  only  consideration  of  the  notes.  The  note  in  ques- 
tion was  made  by  the  defendant,  and  substituted  in  the  place 
of  the  one  mentioned  in  the  agreement  as  having  been  endorsed 
by  him.  It  further  appeared  in  evidence  that,  during  the 
month  of  January,  1836,  and  for  a  long  time  afterwards,  the 
stock  of  the  Rochester  Cotton  Manufacturing  Company  was  at 
least  twenty-five  per  cent,  below  par 

The  defendant's  counsel  offered  to  read  in  evidence  the 
deposition  of  Daniel  Collins,  a  resident  of  Ohio,  taken  under  a 
commission  on  the  llth  of  October,  1839.  The  plaintiffs'  coun- 
sel objected,  on  the  ground  that  Collins  was  interested.  The 
defendant's  counsel  claimed  that  he  had  been  rendered  com- 
petent by  release  ;  and,  for  the  purpose  of  showing  this,  prov- 
ed the  signature  of  the  defendant  to  a  release  dated  October 
2d,  1839.  The  defendant's  counsel  further  proved  that  the 
release  was  delivered  by  the  defendant  to  his  attorney,  Mr. 
Gilbert,  for  Collins'  use,  with  a  request  to  send  it  to  him — that 
it  was  accordingly  enclosed  in  the  same  wrapper  with  the  com- 
mission and  sent  by  mail  to  the  commissioner,  with  directions 
to  deliver  it  to  Collins  before  being  sworn — that  it  was  re- 


ALBANY,  JANUARY,  1843.  257 

Seymour  r.  Strong. 

turned  with  the  commission  &c.  postmarked  at  the  residence 
of  the  commissioner — and  that  Collins  left  this  state  in  1836, 
for  Ohio,  where  he  had  ever  since  resided.  The  plaintiffs1 
counsel  insisted  that  the  evidence  was  not  sufficient  to  show  a 
delivery  of  the  release  to  Collins,  and  the  circuit  judge  sus- 
tained the  objection. 

The  judge  charged  the  jury,  among  other  things,  that  if 
they  should  be  satisfied  the  transaction  was  intended  by  the 
parties  (Collins  and  the  bank,)  as  a  cover  for  a  usurious  loan, 
the  defendant  would  be  entitled  to  a  verdict ;  but  if,  on  the 
other  hand,  they  thought  the  contract  between  the  parties  was 
such  as  the  two  written  agreements  and  the  note  imported  on 
their  face,  and  nothing  more,  they  should  find  in  favor  of  the 
plaintiffs.  The  jury  rendered  a  verdict  for  the  plaintiffs  j  and 
the  defendant  now  moved  for  a  new  trial  on  a  case. 


J.  W.  Gilbert^  for  the  defendant. 
C.  M.  Lee,  for  the  plaintiffs. 

By  the  Court,  COWEN,  J.  No  doubt  Collins  might  avail 
himself  of  the  release  on  proof  of  the  delivery  to  Mr.  Gilbert 
for  his  use.  But  the  object  being  to  qualify  a  witness,  some- 
thing more  than  a  constructive  delivery  of  the  release  was  ne- 
cessary. In  order  to  remove  his  presumed  mental  bias  in  favor 
of  the  party,  it  must  appear  that  he  knew  of  the  release  before 
giving  his  testimony.  The  circumstances  here  in  proof,  how- 
ever, show  that  he  could  not  but  have  known  of  the  release  in 
season  for  that  purpose.  Indeed,  the  proof  of  its  actual  delive- 
ry to  him  before  he  was  sworn  seems  to  be  irresistible. 

There  is  no  pretence  for  this  case  being  within  that  of  Cram 
v.  HendrickS)  (7  Wend.  569  })  nor  the  later  case  of  Rapelye\. 
Anderson,  decided  in  the  court  for  the  correction  of  errors*,  in 

VOL.  IV.  33 


258  CASES  IN  THE  SUPREME  COURT. 

Seymour  e.  Strong. 

December  last,  (a)  The  original  note  was  void  in  its  concoc- 
tion. The  various  agreements,  notes  and  other  arrangements 
•were  all  parts  of  one  transaction,  and  the  effect  of  them  was  to 
secure  more  than  seven  per  cent,  per  annum  to  the  bank  for  the 
loan.  The  whole  was  radically  and  necessarily  vicious  be- 
cause of  such  a  usurious  effect,  by  which  the  intent  of  the  par- 
ties must  be  judged,  and  there  was  no  question  for  the  jury. 
(Haire  v.  Wilson,  9  Barn,  fy  Cress.  643,  per  Lord  Tenterden, 
Ch.  J.  ;  Mackie  v.  Cairns,  5  Cowen,  573,  per  Golden,  senator ; 
The  JV.  Y.  Firemen  Insurance  Co.  v.  Ely,  2  Cowen's  Rep.  678, 
705  ;  Bank  'of  Utica  v.  Wager,  id.  712,  769,  affirmed  on  error 
8  id.  398.) 

I  have  had  occasion,  in  several  recent  cases,  to  examine  the 
state  of  the  usury  law  in  reference  to  questions  very  nearly  of 
kin  to  the  one  before  us ;  and  must  confess  that  I  found  the 
paths  of  fraudulent  device  much  more  broad  and  better  fenced 
for  the  usurer  than  I  had  supposed  possible.  I  found  them 
withal  so  plain  and  numerous,  that  very  little  ingenuity  seemed 
necessary  to  get  round  the  statute.  Three  ways  were  open, 
which  I  had  supposed  to  be  shut,  viz.  the  usurious  loan  of 
credit ;  (Ketchum  v.  Barber,  ante,  p.  224 ;)  usurious  interest  in 
the  name  of  factorage ;  (Suydam  v.  West/all,  ante,  p.  21 1  j)  and 
the  sale  of  choses  in  action  generally  ;  (Rapelye  v.  Anderson, 
post.)  But  we  all  think  that  the  course  taken  in  the  prin- 
cipal case — a  usurious  loan  on  contracts  to  procure  the  as- 
signment of  choses  in  action  at  a  future  day — choses  in  action 
which  are  not  shown  to  have  been  in  existence  at  the  time  of  the 
loan,  the  latter,  moreover,  being  ultimately  secured  by  the  prom- 
issory notes  of  the  party — is  not  sanctioned  by  any  of  the  cases. 
For  the  reasons  more  at  large  why  we  cannot  yield  even  to  a  ver- 
dict pronouncing  such  a  transaction  free  from  usury,  I  refer  to 
the  opinion  delivered  by  me  in  Rapelye  v.  Anderson.  Although 


(a)  For  Rapelye  v.  Anderson,  see  the  cases  decided  by  the  court  for  the  correc- 
tion of  errors,  post . 


ALBANY,  JANUARY,  1848.  £59 


Austin  r.  V&ndcrmark. 


those  reasons  were  overruled  by  a  majority  of  the  court  of  er- 
rors as  not  applicable  to  that  case,  we  think  they  apply  to  the 
present.  The  power  to  grant  new  trials,  where  there  is  a  ver- 
dict against  the  weight  of  evidence,  prevails  in  all  civil  actions, 
except  those  which  draw  in  question  sales,  transfers  or  mort- 
gages made  for  the  purpose  of  defrauding  creditors.  There  are 
also  cases  where  the  usurious  devices  are  thought  to  be  tortuous 
and  obscure,  in  which  jurors  have  been  allowed  to  decide  finally  j 
but  we  are  not  disposed  to  multiply  such  exceptions  to  our  ac- 
knowledged power.  The  legislature  has  commanded  us  to  use  all 
legal  means  in  nullifying  usurious  transactions,  whether  direct  or 
indirect ;  and  we  should  execute  the  command  most  miserably  by 
winking,  or  even  allowing  jurors  to  wink,  while  looking  upon 
thin  disguises.  We  are  satisfied  that  neither  has  ever  been 
done  in  case  of  a  transaction  so  obviously  usurious  as  the  one 
in  question. 

There  must  be  a  new  trial  both  for  error  in  excluding  Col- 
lins' deposition,  and  on  the  merits  as  shown  without  it. 

New  trial  granted. 


AUSTIN  and  others  vs.  VANDERMARK,  impleaded  Ac. 

An  accommodation  endorsement  made  by  one  member  of  a  mercantile  firm  with- 
out  the  assent,  either  express  or  implied,  of  his  co-partners,  cannot  be  enforced 
against  the  latter,  except  in  favor  of  e.  lona  fide  holder  without  notice.  Per 
NELSON,  Ch.  J. 

N.  gave  L.  a  business  note,  endorsed  by  M.,  which  was  transferred  to  A.  After 
the  note  fell  due,  M.,  being  indebted  to  N.,  made  another  note  for  the  cam* 
amount,  payable  to  the  order  of  and  endorsed  by  the  latter  together  with  V.  ft, 
Co.,  and  sent  it  to  A.  as  a  pubstitute  for  the  first  note,  which  hi  desired  fhou!d  be 
returned  to  him,  Held,  that  though  the  firm  name  of  V.  A.  Co.  was  used  for 
M.'s  accommodation,  the  circumstances  were  not  sufficient  to  charge  A.  with 
knowledge  of  the  fact ;  and  that  he  was  therefore  entitled  to  a  verdict  against  all 
the  members  of  the  firm,  though  the  endorsement  was  made  by  oaa,  without  the 
knowledge  or  consent  of  the  others. 


260        CASES  IN  THE  SUPREME  COURT. 


Austin  v.  Vandermark. 


ASSUMPSIT,  by  the  endorsees  against  the  endorsers  of  a  prom- 
issory note,  tried  at  the  Ontario  circuit,  in  November,  1841, 
before  MOSELEY,  C.  Judge.  The  note  was  for  $424,50,  dated 
October  16th,  1839,  made  by  Norton,  Bartle  &  McNeil,  paya- 
ble a  the  Mechanics'  Bank  in  the  city  of  New- York,  to  the 
order  of  and  endorsed  by  Norton,  Ford  &  Co.  and  O.  Vander- 
mark &  Co.  All  the  defendants  except  Frederick  Vander- 
mark, of  the  firm  of  O.  Vandermark  &  Co.,  allowed  judgment 
to  pass  against  them  by  default.  On  the  trial,  the  case  was 
this  :  Norton,  Ford  &  Co.  being  indebted  to  one  Lane,  gave 
him  their  note  endorsed  by  Norton,  Bartle  &  McNeil,  which 
was  transferred  by  Lane  to  the  plaintiffs.  When  this  note  be- 
came due,  Norton,  Bartle  &  McNeil  owed  Norton,  Ford  & 
Co.,  and  agreed  to  the  note  in  question  and  to  get  it  endorsed 
by  O.  Vandermark  &  Co.  for  the  purpose  of  taking  up  the 
first  note  on  which  Norton,  Ford  &  Co.  were  liable  as  princi- 
pals. The  note  in  question  was  accordingly  made,  and  en- 
dorsed by  O.  Vandermark  in  the  name  of  his  firm  for  the  ac- 
commodation of  the  makers.  The  defendant  F.  Vandermark 
was  not  present  when  the  endorsement  was  made,  nor  did  it 
appear  that  he  knew  of  or  assented  to  it.  The  note  in  ques- 
tion was  sent  to  the  plaintiffs  in  a  letter  written  by  McNeil, 
one  of  the  makers,  dated  Phelps,  October  30th,  1839.  The 
letter  was  in  these  words  :  "  Gent'n — Above  I  send  you  Nor- 
ton, Bartle  &  McNeil's  note  for  amount  of  Norton,  Ford  & 
Co.'s  note  in  favor  of  Henry  Lane  for  $417  past  due,  and 
which  you  will  please  return  me  per  mail."  In  answer  to  this 
letter,  the  plaintiffs  wrote  to  McNeil  as  follows  :  "  New- York, 
November  2d,  1839.  Sir  :  We  received  this  morning  in  yours 
of  the  30th  ult.  a  note  drawn  by  Norton,  Bartle  &  McNeil  at 
63  days  from  16th  Oct.  1839,  for  $424,50,  to  replace  one  of 
Norton,  Ford  &  Co.'s  for  $411,15,  protested  for  non-payment 
the  5th  ult.  By  reference  &c.,  you  will  perceive  that  the  note 
for  $424,50  is  $4,44  too  much.  This  amount  we  will  hold 
subject  to  your  order  on  payment  of  the  said  note."  There 
was  no  evidence  in  the  case,  other  than  the  above  letters  and 


ALBANY,  JANUARY,  1843.  261 


Austin  ».  Vandcrraark. 


the  notes  themselves,  to  show  that  the  plaintiffs  knew  the  nbte 
in  question  was  endorsed  by  O.  Vandermark  &  Co.  for  the  ac- 
commodation of  the  makers,  or  that  the  name  of  the  firm  was 
endorsed  without  the  knowledge  of  the  defendant  F.  Vander- 
mark. The  judge  charged  the  jury  that,  prima  facie,  the 
plaintiffs  were  to  be  considered  bona  fide  holders,  and  that  it 
lay  upon  the  defendant  F.  Vandermark,  to  show  the  plaintiffs 
knew,  when  they  took  the  note,  that  he  did  not  consent  to  the 
endorsement.  The  judge  further  charged,  that  there  was  not 
enough  upon  the  face  of  the  notes  and  letters  to  show  that  O. 
Vandermark  &  Co.  were  accommodation  endorsers.  The  jury 
found  for  the  plaintiffs,  and  the  defendant  F.  Vandermark 
now  moved  for  a  new  trial  on  a  case. 

F.  M.  Haight,  for  the  defendant,  F.  Vandermark. 
A.  Warden,  for  the  plaintiffs. 

By  the  Court j  NELSON,  Ch.  J.  As  the  firms  of  0.  Vander- 
mark &  Co.  and  Norton,  Ford  &  Co.  were  joint  payees  and 
endorsers,  the  note  must  be  regarded,  prima  facie,  as  business 
paper  with  which  the  former  firm  was  connected,  and  therefore 
properly  negotiated  by  one  of  the  members.  But  the  material 
question  in  the  case  is,  whether  the  circumstances  given  in  evi- 
dence were  sufficient  to  make  out  a  notice  to  the  plaintiffs  that 
O.  Vandermark  &  Co.  were  accommodation  parties.  If  so, 
the  plaintiffs  are  properly  chargeable  with  want  of  authority 
on  the  part  of  O.  Vandermark  to  bind  his  firm.  The  making 
of  accommodation  endorsements  is  out  of  the  scope  of  the  part- 
nership business  of  a  mercantile  house,  and  therefore  not  bind- 
ing upon  it,  unless  done  with  the  express  or  implied  assent 
of  all  the  members  of  the  firm.  This  is  the  rule,  except  where 
the  paper  comes  to  the  hands  of  a  bonajide  holder.  (Ganse- 
voort  v.  Williams,  14  Wend.  133,  138 ;  Wilson  v.  Williams, 
id.  146.) 


262  CASES  IN  THE  SUPREME  COURT. 


Austin  v.  Vandermark. 


The  only  circumstance  in  the  case  tending  to  establish  the 
plaintiffs'  knowledge  of  the  relation  which  the  firm  of  O.  Van- 
dermark &  Co.  occupied  in  respect  to  the  note  in  question^ 
without  regard  to  the  form  in  which  it  is  made,  is,  that  the 
note  was  sent  in  a  letter  to  the  plaintiffs  by  McNeil,  one 
of  the  makers.  This,  I  admit,  had  the  debt  for  which  the 
first  note  was  given  been  the  debt  of  McNeil's  firm,  would,  if 
unexplained,  have  been  conclusive  in  favor  of  the  defendant, 
for  the  reason  given  by  the  chancellor  in  Stall  v.  Catskill 
Bank,  (IS  Wend.  478.)  But  the  first  note  was  not  given  for 
the  debt  of  McNeil's  firm,  and  therefore  the  fact  of  his  posses- 
sion and  transmission  of  the  note  in  question  to  the  plaintiffs  is 
not  at  all  inconsistent  with  the  presumption  arising  from  the 
face  of  the  note,  viz.  that  it  was  business  paper.  The  pa- 
per being  sent  to  take  up  the  note  of  third  parties,  the  natu- 
ral inference  from  the  fact  is,  that  McNeil  acted  as  agent 
for  this  purpose  in  behalf  of  Norton,  Ford  &  Co.,  the  real 
debtors,  for  whose. benefit  the  note  held  by  the  plaintiffs  was 
about  to  be  renewed.  Besides,  McNiel's  firm  being  endorsers 
upon  the  note  that  had  just  fallen  due,  he  was  interested  in 
seeing  that  it  was  taken  up  ;  and  this  might  well  account,  in 
the  minds  of  the  plaintiffs,  for  his  being  the  medium  of  commu- 
nication on  behalf  of  the  principal  debtors.  At  least,  I  think 
it  would  be  more  natural  for  them  to  draw  such  an  inference  from 
the  facts  within  their  knowledge,  than  that  McNeil's  firm  had 
made  the  note  and  procured  the  names  of  the  real  debtors  and 
of  O.  Vandermark  &  Co.  as  accommodation  endorsers,  for  the 
mere  purpose  of  taking  up  the  first  note. 

It  appears  to  me  the  transaction  should  be  regarded  in  the 
same  light  as  if  the  note  had  been  transmitted  by  Norton,  Ford 
&  Co.  to  the  plaintiffs.  If  such  had  been  the  case,  there  would 
have  been  no  difficulty.  Nothing  would  then  have  appeared  to 
distinguish  the  transaction  from  the  ordinary  case  of  a  party 
paying  his  debt  by  turning  out  to  the  creditor  what  appears,  on 
its  face,  to  be  a  business  note. 


ALBANY,  JANUARY,  1843.  263 

Kelley  ».  Mayor  &c.  of  Brooklyn. 

I  am  of  opinion  that  the  ruling  of  the  learned  judge  at  the 
circuit  was  correct,  and  that  a  new  trial  should  be  denied. 

New  trial  denied. 


KELLEY  vs.  THE  MAYOR  &c.  OF  THE  CITY  or  BROOKLYN. 

A  statement  of  a  particular  fund  in  a  draft  or  bill  of  exchange,  if  inserted  merely 
as  a  direction  to  the  drawee  how  to  reimburse  himself,  will  not  vitiate  it. 

Accordingly,  in  an  action  against  the  city  of  Brooklyn  by  an  endorsee  of  an  instru- 
ment, signed  by  the  mayor  and  countersigned  by  the  clerk,  in  these  words : 
"  To  the  treasurer  of  the  city  of  Brooklyn,  at  the  Long  Island  Bank — Pay  A.  L. 
or  order,  fifteen  hundred  dollars  for  award  No.  7,  and  charge  to  Bedford  road 
assessment"  &c.  :  Held  that,  notwithstanding  the  latter  clause,  the  instrument 
was  a  negotiable  bill  of  exchange. 

A  municipal  corporation  may  issue  negotiable  paper  for  a  debt  contracted  in  the 
course  of  its  proper  business ;  and  no  provision  in  its  charter  or  elsewhere,  merely 
directing  a  certain  form,  in  affirmative  words,  should  be  construed  as  taking  away 
this  power.  Per  COWEN,  J. 

The  same  rule  applies  to  all  corporations,  whether  public  or  private.  Per  COWEW,  J. 

Where  the  charter  of  a  municipal  corporation  provided  that  all  moneys  should  be 
drawn  from  the  treasury  in  pursuance  of  an  order  of  the  common  council,  signed 
by  the  mayor  &c. :  Held,  that  a  negotiable  draft  on  the  treasury,  signed  in  the 
manner  directed,  but  issued  on  the  basis  of  a  mere  note  or  memorandum  in  the 
corporation  minutes,  without  a  formal  order  having  been  entered,  wan  a  sufficient 
compliance  with  the  charter ;  it  appearing  that  this  was  the  accustomed  mode 
of  drawing  moneys. 

The  corporation  will  not  be  discharged  from  liability  on  such  draft  by  the  omission 
of  the  holder  to  make  presentment  to  the  treasurer  and  give  notice,  provided  it 
be  shown  that  it  neither  has  suffered  nor  c&n  suffer  from  the  omission. 

ASSUMPSIT,  tried  at  the  Kings  circuit,  in  December,  1841, 
before  KENT,  C.  Judge.  The  action  was  by  the  plaintiff  as 
endorsee  of  a  written  instrument  in  these  words  : 

«  No.  1122.  Dec.  31st,  1836. 

City  of  Brooklyn,  ss. 

To  the  Treasurer  of  the  city  of 
Brooklyn,  at  the  Long  Island  Bank.     Pay  Alexander  Lyon,  or 


264  CASES  IN  THE  SUPREME  COURT. 

Kelley  v.  Mayor  &c.  of  Brooklyn. 

order,  fifteen  hundred  dollars  for  award  No.  7,  and  charge  to 
Bedford  road  assessment  &c. 

A.  G.  Stevens,  Clerk.  Jon.  Trotter,  Mayor." 

(Endorsed)     "  Alexander  Lyon." 

On  the  trial,  the  plaintiff  proved  the  execution  of  the  in- 
strument and  endorsement,  and  that  the  drawers  were  the 
mayor  and  clerk  of  the  common  council  of  the  city  of  Brook- 
lyn. It  was  also  proved  that,  at  the  date  of  the  instrument, 
the  treasurer  of  the  city  had  no  funds  arising  from  the  Bedford 
road  assessment,  but  that  such  funds  came  to  his  hands  soon 
after  and  were  drawn  out  from  time  to  time  by  the  officers  of 
the  city  corporation.  The  instrument  in  question  was  present- 
ed to  the  treasurer  in  October,  1838,  and  payment  refused.  It 
further  appeared  that  the 'instrument  was  drawn  in  the  ordinary 
form  and  according  to  the  usual  course  of  business  in  such  cases, 
having  been  authorized  by  a  vote  of  the  common  council.  The 
entry  in  the  book  of  minutes,  evincing  the  authority,  was  as  fol- 
lows :  "  Communication  from  H.  C.  M.  that  the  opening  of 
Bedford  road  had  been  confirmed  &c.,  on  motion,  the  usual 
order  was  entered."  No  order  was  in  fact  entered,  but  the 
term  "  usual  order"  was  shown  to  mean  an  order  to  pay  the 
awards,  costs  of  the  proceedings  &c.  The  plaintiff  here  rested, 
and  the  defendants'  counsel  moved  for  a  nonsuit  on  the  fol- 
lowing, among  other  grounds,  viz.  :  1 .  That  the  instrument  in 
question  was  not  presented  in  due  season  for  payment ;  2.  That 
notice  of  non-payment  had  not  been  given  ;  3.  That  the  instru- 
ment was  not  negotiable  ;  4.  That  the  mayor  and  clerk  were 
not  legally  authorized  to  bind  the  defendants  by  drawing  the 
instrument  in  question  ;  and  5.  That  the  common  council  had 
no  power  to  issue  negotiable  paper  for  drawing  funds  from  the 
city  treasury.  The  circuit  judge  denied  the  motion,  and  the 
defendants'  counsel  excepted.  The  jury  rendered  a  verdict  for 
the  plaintiff,  and  the  defendants  now  moved  for  a  new  trial  on 
a  bill  of  exceptions. 


ALBANY,  JANUARY,  1843.  265 

Kelley  v.  Mayor  &.c.  of  Brooklyn. 

W.  A.  Greene,  for  the  defendants. 
C.  DeWitt,  for  the  plaintiff. 

By  the  Court,  COWEN,  J.  We  are  of  opinion  that  the  instru- 
ment which  the  plaintiff  gave  in  evidence  is  a  negotiable  bill 
of  exchange.  The  words,  "  City  of  Brooklyn,  ss.  To  the 
Treasurer  of  the  city  of  Brooklyn,  at  &c.  Pay,"  &c.,  together 
with  the  signatures,  import  plainly  enough  a  draft  of  the  city 
by  its  agents.  It  is  payable  generally  to  A.  Lyon  or  order,  in 
cash ;  and  the  payment  is  not,  on  the  face  of  the  bill,  either 
conditional  or  restricted  to  any  particular  fund.  The  clause, 
"  charge  to  Bedford  road,"  &c.  is  a  mere  direction  as  to  the 
mode  of  reimbursement.  {Chit,  on  Bills,  158,  Am.  ed.  of 
1839.) 

There  is  nothing,  either  in  the  mode  of  issuing  or  form  of 
the  draft,  incompatible  with  the  21st  section  of  the  act  to  incor- 
porate the  city  of  Brooklyn.  (Sess.  L.  of  1834,  p.  97.)  The 
provision  requiring  an  order  and  warrant  of  the  common 
council,  for  drawing  money  from  the  treasury,  is  satisfied, 
if,  as  was  the  case  here,  a  draft  be  authorized  according  to  the 
usual  course  of  corporate  business.  The  word  order  means  no 
more  than  a  direction  ;  which  may  be  express,  or  implied  from 
acquiescence  in  the  general  practice  to  issue  drafts  on  the  basis 
of  such  notes  or  memoranda  as  were  shown  to  stand  in  the 
minutes  of  the  corporation.  The  draft  was  signed  and  counter- 
signed according  to  the  statute,  by  the  mayor  and  clerk. 
There  is  nothing  in  the  statute  expressing  or  implying  an  in 
hibition  to  make  the  warrants  negotiable. 

Independently  of  any  statute  provision,  a  corporation  may 
issue  negotiable  paper  for  a  debt  contracted  in  the  course  of  its 
proper  business.  (Moss  v.  Oakley,  2  Hill,  265.)  This  is  a 
power  incident  to  all  corporations,  and  no  provision  in  its  char- 
ter or  elsewhere,  merely  directing  a  certain  form  in  affirmative 
words,  should  be  so  construed  as  to  take  away  the  power.  The 
draft  in  question  was  issued  by  the  agents  of  the  defendants, 

VOL.  IV.  34 


266       CASES  IN  THE  SUPREME  COURT. 

Kelley  v.  Cowing. 

acting  according  to  the  usual  course  in  such  matters.  A  disa- 
vowal by  the  corporation,  if  allowed,  might  operate  as  a  fraud 
upon  the  plaintiff  and  upon  others.  The  money,  when  drawn 
for,  or  soon  after,  was  in  possession  of  the  corporation  j  and  it 
stood  a  debtor  to  the  plaintiff  pro  tanto. 

The  bill  was  not,  on  its  face,  restricted  to  the  particular 
fund  arising  from  the  Bedford  road  transaction  ;  yet,  for  re- 
imbursement, the  treasurer  was  directed  to  charge  that  fund. 
As  between  him  and  the  corporation,  this  was  his  proper  re- 
source ;  and,  the  fund  being  exhausted,  he  no  longer  owed  it  as 
a  duty  to  the  corporation  to  pay.  He  accordingly  has  not  paid. 
At  times  he  was  in  funds  ;  but  finally  they  were  all  withdrawn 
by  warrants  from  the  corporation  itself,  the  drawer  of  the  bill 
and  the  defendant  in  this  suit.  Yet  the  corporation  objects 
that  the  bill  was  not  presented  in  due  season,  and  that  it  has 
had  no  notice  of  non-payment.  Having  got  the  fund  into  their 
own  hands,  it  appears  affirmatively  that  they  neither  have  suf- 
fered nor  can  suffer  any  thing  for  want  of  either  presentment 
or  notice.  Neither  was  therefore  necessary.  (Harker  v. 
Anderson,  21  Wend.  375  ;  Commercial  Bank  of  Albany  v. 
Hughes,  17  Wend.  94,  97  to  99.) 

New  trial  denied. 


KELLEY  &  MARCY  vs.  COWING. 

In  general,  courts  of  law  will  not  lend  their  aid  in  enforcing  injunctions  from  chan- 
cery ;  nor  will  they  ordinarily  take  any  notice  of  such  writs,  in  the  course  of 
proceedings  at  law.  Per  NELSON,  Ch.  J. 

H.  having  made  a  voluntary  assignment  of  all  his  efiects  for  the  benefit  of  credi- 
tors, an  injunction  was  obtained  on  a  bill  filed  against  him  and  the  assignees 
restraining  them  from  collecting  or  receiving  any  debts  due  to  H. ;  after  which, 
C.,  with  full  knowledge  of  the  injunction,  paid  to  the  assignees  the  amount  of  a 
note  given  them  for  an  account  which  H.  had  against  him.  Held,  in  an  action 
on  the  note  by  one  to  whom  it  was  transferred  after  it  became  due,  that  the  pay. 
ment  to  the  assignees  constituted  a  good  defence. 


ALBANY,  JANUARY,  1843.  267 

Kelley  r.  Cowing. 

ASSUMPSIT,  on  a  promissory  note  for  $554,05,  dated  April 
1st,  1837,  payable  to  John  Lay,  Jr.,  Morris  Butler  and  A.  H. 
Patterson,  assignees  of  Hempsted  &  Keeler,  or  order,  four 
months  from  date.  The  note  was  endorsed  by  the  payees  to 
D.  Tillinghast,  who  afterwards  endorsed  it  in  blank.  The  de- 
fence was  payment.  The  cause  was  referred  to  a  sole  referee, 
and,  on  the  hearing  before  him,  the  facts  proved  were  as  follows  : 
On  the  28th  of  March,  1837,  Hempsted  &  Keeler  executed  to 
Lay,  Butler  and  Patterson,  a  voluntary  assignment  of  all  their  ef- 
fects for  the  benefit  of  creditors.  Among  the  effects  so  assigned 
was  an  account  against  the  defendant,  for  which  the  note  in  ques- 
tion was  given.  On  the  4th  of  August,  1837,  one  Barnum 
filed  a  creditor's  bill  in  the  court  of  chancery  against  Hempsted 
&  Keeler  and  their  assignees  ;  whereupon  an  injunction  was  is- 
sued restraining  them  from  collecting  or  receiving  the  debts 
due  H.  &  K.  In  September  following,  after  the  service  of 
the  injunction,  the  defendant  paid  to  the  assignees  the  amount 
due  on  the  note  in  question ;  but  they  refused  to  deliver  it  up, 
alleging  that  the  injunction  restrained  them  from  parting  with  it. 
The  money  received  of  the  defendant  was  paid  to  the  Clinton 
Bank  in  satisfaction  of  a  judgment  in  its  favor  against  Hemp- 
sted &  Keeler.  Barnum's  judgment  against  Hempsted  & 
Keeler  amounted  to  $610,68  ;  and  the  receiver  appointed  in 
the  chancery  suit  [D.  Tillinghast]  collected  over  $1200,  for 
which  he  had  not  yet  accounted.  A  decree  was  finally  obtain- 
ed in  the  chancery  suit,  setting  aside  the  assignment  as  fraudu- 
lent. On  the  25th  of  July,  1838,  another  bill  was  filed  by  one 
Niles  against  the  same  parties,  and  a  common  receiver  appoint- 
ed for  both  suits.  This  last  receiver  sold  the  note  in  question 
to  one  Masten  for  $20,  and  he  transferred  it  to  the  plaintiffs. 
The  referee  reported  in  favor  of  the  plaintiffs,  and  the  defen- 
dant now  moved  to  set  aside  the  report. 

,  for  the  defendant. 


J.  G.  Masten,  for  the  plaintiffs. 


268  CASES  IN  THE  SUPREME  COURT. 

Kelley  ».  Cowing. 

By  the  Court,  NELSON,  Ch.  J.  The  only  question  in  the 
case  is,  whether  the  payment  of  the  note  is  to  be  regarded  as 
having  been  made  by  the  defendant  in  his  own  wrong,  by  rea- 
son of  the  injunction  restraining  the  payees  from  collecting  or 
receiving  the  debts  due  Hempsted  &  Keeler. 

It  is  a  general  rule,  that  courts  of  law  will  not  lend  their  aid 
to  enforce  injunctions  from  chancery  ;  nor  do  they  ordinarily 
take  any  notice  of  such  writs  in  the  course  of  proceedings  in 
suits  at  law.  The  case  of  Burt  v.  Mapes,  (1  Hill,  649,)  is  an 
authority  to  show  that,  if  the  payees  of  the  note  in  question 
had  instituted  a  suit  in  this  court  against  the  defendant,  we 
should  not  have  received  the  facts  now  set  up  to  avoid  the  ef- 
fect of  the  payment,  in  bar  of  the  action  ;  and  I  do  not  see, 
therefore,  how  we  can  consistently  say  that  payment  was  not 
well  made.  We  should  have  allowed  the  plaintiffs  to  go  on 
with  the  suit,  and  left  the  court  of  chancery  to  deal  with  them 
as  it  saw  fit,  under  the  particular  circumstances  of  the  case. 
That  court  might  have  excused  the  act  and  overlooked  the 
breach  of  its  process  ;  at  all  events,  we  do  not  assume  the  of- 
fice of  determining  what  shall  or  shall  not  be  the  effect  or  con- 
sequences of  such  a  breach  of  its  process.  It  is  enough  that 
the  court  of  chancery  possesses  ample  power  to  punish  any  un- 
warrantable interference  with  or  violation  of  its  mandates,  and 
does  not  need  the  aid  of  this  court.  The  aggrieved  party  has 
yet  an  opportunity  to  reach  the  assignees,  and  may  be  remu- 
nerated for  all  his  damages  by  the  infliction  of  proper  fines, 
if  the  case  be  one  which,  in  the  ordinary  course  of  proceed- 
ings and  in  the  exercise  of  a  sound  discretion,  would  be  re- 
garded as  demanding  the  interference  of  the  court  of  chan- 
cery. 

In  Booth  v.  Booth,  (1  Salk.  322,  6  Mod.  288,  S.  C.,)  the 
court  set  aside  an  execution  which  had  been  issued  after  the 
expiration  of  a  year  without  a  s cire  facias  ;  and  this,  though 
the  plaintiff  had  been  tied  up  by  an  injunction  issued  on  the 
defendant's  application.  The  court  said  they  could  not  take 
notice  of  chancery  injunctions.  In  Mitchel  v.  Cue,  (2  Burr. 


ALBANY,  JANUAHY,  1848. 


Keltey  0.  Cowing. 


660,)  the  judges  refused  to  set  aside  an  execution,  under  like 
circumstances ;  not,  however,  on  the  ground  that  the  court 
was  bound  to  notice  the  injunction,  but  for  the  reason  that  the 
party  should  not  be  allowed  to  take  advantage  of  his  own  act 
in  delaying  the  plaintiff.  In  Gorton  v.  Dyson,  (1  Brod.  If 
Bing.  219,)  the  court  entertained  the  argument  of  a  cause,  not- 
withstanding an  injunction  in  the  court  of  exchequer  against 
all  further  proceedings  in  the  C.  B.  And  I  observe  also  that, 
in  Franklin  v.  Thomas,  (3  Meriv.  234,)  it  was  said  to  have 
been  the  opinion  of  Lord  Thurlow,  that  where  an  injunction 
is  obtained,  even  after  execution  levied,  though  it  is  a  breach 
of  it  for  the  party  to  call  upon  the  sheriff  to  pay  over  the  mo- 
ney, yet,  if  he  voluntarily  pay,  it  is  no  breach  of  the  in- 
junction to  receive  it.  Lord  Eldon  thought  that,  in  such  a 
case,  the  person  receiving  the  money  would  be  ordered  to  pay 
it  into  court.  In  the  case  before  us,  the  defendant  was  not 
made  a  party,  nor  was  he  enjoined  j  and  it  would  seem  from 
the  doctrine  of  Lord  Thurlow,  that  the  payment  by  the  defen- 
dant would,  even  in  the  court  of  chancery,  be  a  discharge  of 
the  debt.  Much  more  must  it  be  so  regarded  in  a  court 
of  law. 

Unless  we  are  bound  by  some  settled  principles  of  law  to 
take  notice  of  this  injunction,  (and  I  think  we  are  not,)  it  will 
certainly  lead  to  a  more  just  and  equitable  arrangement  in  re- 
spect to  all  parties  concerned,  for  the  plaintiffs  to  appeal  to 
the  tribunal  whose  process  has  been  disregarded.  It  seems 
that  this  money  has  been  in  fact  applied  in  payment  of  a  debt 
due  from  Hempsted  &  Keeler,  to  whose  estate  the  note  be- 
longed ;  and  if  the  defendant  should  now  be  held  accountable 
for  the  money,  this  consideration  might  go  to  mitigate  his  loss. 
Again  :  possibly  the  court  of  chancery  would  be  disposed  to 
follow  out  the  idea  of  Lord  Eldon,  and  call  upon  the  Clinton 
Bank  for  the  whole  or  a  part  of  the  money.  The  powers  of 
that  court  over  all  the  parties  concerned  in  the  payment  and 
receipt  of  the  money  upon  the  note  in  question,  are  much  more 
ample  and  extensive  than  those  possessed  by  courts  of  law. 


270       CASES  IN  THE  SUPREME  COURT. 

Kelley  v.  Cowing. 

In  the  exercise  of  those  powers,  the  former  court  would  be  en- 
abled to  bring  out  a  more  full  developement  of  the  circum- 
stances connected  with  the  whole  matter  than  can  possibly  be 
done  here.  It  might,  perhaps,  regard  the  trifling  sum  for 
which  the  note  was  sold  by  the  receiver.  These  consideration? 
should  induce  us  to  leave  the  question  of  a  breach  of  the  in 
junction,  and  its  effect,  to  the  exclusive  cognizance  of  the 
court  of  chancery. 

I  am  of  opinion,  therefore,  as  well  upon  the  fitness  and  pro 
priety  of  the  thing,  as  upon  authority,  that  we  cannot  take  no 
tice  of  the  injunction,  and,  consequently,  that  a  valid  payment 
of  the  note  was  established.     The  report  of  the  referee  must 
be  set  aside  j  costs  to  abide  the  event. 

Ordered  accordingly. 


END  OF  JANUARY   TEEM. 


nt  TH* 


COURT  FOR  THE  CORRECTION  OF  ERRORS 


or  THE 


STATE    OF   NEW-YORK, 

IN  DECEMBER,  1842. 


HANFORD  vs.  ARTCHER. 

Tho  question  being  whether  the  plaintiff's  title  to  goods  in  dispute,  which  he  claim, 
ed  by  virtue  of  an  absolute  sale,  was  fraudulent  as  against  the  vendor's  creditors 
under  2  R.  S.  136,  §  5,  it  appearing  that  no  change  of  possession  had  taken 
place,  the  circuit  judge  told  the  jury  to  enquire  if  any  good  reason  had  betn 
shown,  which  they  could  approve,  why  the  possession  had  not  been  changed  tj-r.  ; 
whereupon  a  verdict  was  rendered  in  favor  of  the  defendant :  Held,  that  the 
charge  was  erroneous  as  tending  to  mislead  the  jury  from  the  true  point  of  en- 
quiry, viz.  the  bona  fides  of  the  transaction ;  and  this,  though  the  circuit  judge,  in 
a  previous  part  of  his  charge,  had  read  the  statute  to  the  jury,  telling  them  that 
the  question  of  fraudulent  intent  was  one  of  fact  for  their  decision. 

WALWORTH,  chancellor,  dissented,  holding  that  the  party  claiming  under  an  abso- 
lute sale  must,  in  addition  to  other  proof  of  the  bona  fides  of  the  transaction, 
furnish  a  satisfactory  excuse  to  the  court  and  jury  for  the  want  of  a  change  of 
possession ;  and  that  the  charge  in  this  respect  was  therefore  proper. 

The  circuit  judge  should  have  told  the  jury  to  enquire  whether  it  had  been  shown 
on  the  part  of  the  plaintiff,  that  the  sale  was  made  in  good  faith,  and  without 
any  intent  to  defraud  creditor*  or  subsequent  purchasers.  Per  BIUDISH,  prtsi- 


272       CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  v.  Artcher. 


WALWORTH,  chancellor,  was  of  opinion  that,  upon  the  whole  charge  taken  together, 
the  question  of  fraud  or  no  fraud  was  fairly  submitted  to  the  jury. 

The  statute  has  not  undertaken  to  define  what  shall  be  sufficient  to  prove  good 
faith  or  an  absence  of  intent  to  defraud ;  but  has  left  this  to  be  determined  by 
the  jury,  under  the  direction  of  the  court,  from  such  competent  and  relevant  ten- 
timony  as  is  presented  to  them  according  to  the  ordinary  and  established  rules 
of  evidence.  Per  BRADISH,  president. 

The  power  of  the  court  to  decide  as  to  the  competency  and  relevancy  of  the  evi- 
dence offered  in  such  case,  has  not  been  impaired  by  the  statute.  Per  BRADISH, 
president. 

The  court,  however,  must  decide  in  view  of  the  proper  issue ;  i.  e.  with  reference 
to  the  tendency  of  the  evidence  to  show  good  faith  and  an  absence  of  fraudu- 
lent intent,  and  not  with  reference  to  the  mere  question  whether  delivery  was 
practicable.  Per  HOPKINS,  senator  ;  BRADISH,  president,  concurring. 

Proof  of  a  valuable  consideration  or  an  honest  debt  is  essential  to  show  good  faith ; 
and  if  such  proof  be  not  given,  the  court  may  refuse  to  put  the  case  to  the 
jury,  or  may  set  aside  the  verdict  where  one  has  been  given  affirming  the  validi- 
ty of  the  transaction.  Per  HOPKINS,  senator. 

The  proof  of  consideration  must  go  beyond  a  mere  paper  acknowledgment  of  it, 
such  as  would  be  binding  between  the  parties.  Per  HOPKINS,  senator. 

Over  and  above  evidence  of  consideration  or  an  honest  debt,  the  statute  contem- 
plates something  further ;  i.  e.  proof  of  circumstances  showing  absence  of  an  uu 
tent  to  defraud  creditors  &c.  Per  HOPKINS,  senator. 

For  this  purpose,  facts  tending  to  characterize  the  transaction  as  having  occurred 
in  the  ordinary  course  of  fair  dealing,  are  relevant ;  e.  g.  circumstances  of  publici- 
ty accompanying  and  following  it,  &c.  Per  HOPKINS,  senator. 

So,  as  to  facts  tending  to  show  that  the  party  leaving  the  possession  unchanged 
was  actuated  by  motives  of  humanity ;  e.  g.  a  laudable  desire  to  contribute  to 
the  comfortable  support  of  a  near  relative  or  friend,  or  to  aid  him  in  a  lawful 
business  &c.  Per  HOPKINS,  senator  ;  WALWORTH,  chancellor,  contra. 

Proof  that  a  sale  or  mortgage  of  chattels  is  founded  on  a  sufficient  consideration, 
will  not  of  itself  rebut  the  presumption  of  fraud  arising  from  the  want  of  a  change 
of  possession ;  and  unless  more  be  proved,  the  judge  is  not  required  to  submit 
the  cause  to  the  jury.  Per  WALWORTH,  chancellor. 

Evidence  which  will  be  sufficient  to  show  good  faith  and  an  absence  of  intent  to  de- 
fraud, will  also  conclusively  rebut  the  presumption  of  fraud  which  the  statute 
raises  from  non-delivery  of  possession ;  and  therefore  no  additional  evidence  is 
necessary  to  account  for  such  non-delivery.  Per  BRADISH,  president,  and  HOP- 
KINS, senator. 

A  full  and  free  power  of  disposal  of  chattels  is,  in  general,  an  essential  and  inher- 
ent incident  of  ownership ;  and  a  vendee  or  assignee  has  the  same  right  to  leave 
them  in  the  possession  of  the  vendor,  provided  there  be  no  want  of  good  faith 
and  no  intent  to  defraud  creditors  &c.,  that  he  would  have  to  take  them  into  his 
own  possession  or  to  leave  them  with  a  third  person.  Per  BRADISH,  president. 

History  of  the  law  relating  to  conveyances  of  chattels  made  to  defraud  creditors 


ALBANY,  DECEMBER,  1842.  £73 


H&nford  v.  Artchor. 


&.c. ;  and  various  English  and  American  case*  on  that  subject,  commented  on. 
Per  BRADISH,  president. 

The  case  of  Smith  $  Hoe  v.  Acker,  (23  Wend.  653,)  reviewed,  explained  and 
approved.  Per  BRADISH,  president,  and  HOPKINS,  senator. 

The  same  case  reviewed  and  further  explained  by  WALWOKTH,  chancellor,  and  his 
reasons  for  the  vote  there  given  by  him,  stated. 

The  case  of  Cole  &  Thurman  v.  Whitt,  (26  Wend.  511,)  reviewed  and  comment- 
ed on.  Per  WAL.WORTH,  chancellor. 

How  far  the  decisions  of  this  court  are  to  be  regarded  as  authoritative  expositions  of 
the  law,  and  binding  as  such  upon  other  courts  in  si'nilar  cases,  discussed  and 
considered.  Per  BRADISH,  president,  and  HOPKINS,  senator. 

The  words  "  actual  &c.  change  of  possession"  in  2  ft.  S.  136,  §  5,  are  to  be  inter, 
pretcd  literally,  and  will  not  be  satisfied  by  a  mere  legal  or  constructive  delivery. 
Per  HOPKINS,  senator. 

Accordingly,  though  the  vendor  be  suffered  to  remain  hi  possession  in  good  faith, 
as  clerk  of  the  vendee,  this  will  not  relieve  the  latter  from  the  onus  of  proving 
good  faith  in  other  respects.  Per  HOPKINS,  senator. 

For  the  purpose  of  rebutting  the  presumption  which  the  statute  raises  from  the  want 
of  a  change  of  possession,  it  is  not  proper  to  ask  the  vendor,  in  general  terms, 
whether,  so  far  as  he  is  concerned,  there  was  any  actual  fraud  in  the  trkole 
transaction.  Per  HOPKINS,  senator,  and  WALWORTU,  chancellor. 

Semble,  that  the  interest  of  a  mortgagor  in  personal  property  may  be  lawfully  seized 
and  sold  on  afi.fa.  against  him,  subject  to  the  claim  of  the  mortgagee,  at  any 
time  before  the  latter  has  exercised  his  right  of  reducing  the  property  to  posses 
son.  Per  WAJLWORTH,  chancellor. 

At  all  events,  replevin  in  the  cepit  will  not  lie  by  the  mortgagee  against  the  sher> 
iff  for  the  mere  act  of  levying  under  such  circumstances.  Semble.  Per  WAJU 
WORTH,  chancellor. 

Qucre,  however,  whether  the  action  will  not  lie,  where  the  sheriff  levies  upon  the 
whole  interest  in  the  property.  Per  HOPKINS,  senator. 

In  general,  objections  not  made  at  the  trial  cannot  bo  urged  on  a  writ  of  error. 
Per  WAZ.WORTH,  chancellor,  and  HOPKINS,  senator. 

Quere,  if  this  be  so  as  to  objections  which  could  not  have  been  obviated  at  the 
trial,  had  they  been  raised.  Per  WALWORTH,  chancellor. 

A  judgment  will  not  be  reversed  on  error,  merely  because  the  judge  who  pronoun- 
ced it  gave  an  erroneous  or  insufficient  reason  therefor.  Per  WALWORTH,  chan- 
cellor. 

ON  error  from  the  supreme  court.  The  action  in  that  court 
was  replevin,  brought  by  Hanford  against  Artcher,  for  certain 
goods  claimed  by  the  former  under  a  sale  made  to  him  by  the 
assignees  of  one  Norton.  Artcher,  being  sheriff,  seized  the 
goods  under  aft.  fa.  against  Norton,  insisting  that  Hanford's 
title  was  fraudulent  and  void  as  against  Norton's  creditor!. 

VOL.  IV.  35 


274  CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  r.  Artcher. 


Judgment  was  rendered  by  the  court  below  in  favor  of  Artcher. 
The  proceedings  there,  together  with  the  leading  facts  of  the 
case,  are  stated  in  1  Hill,  347.  Some  additional  particulars 
relating  to  the  circuit  judge's  charge  to  the  jury,  upon  which 
the  case  seems  finally  to  have  turned,  will  be  found  in  the 
opinions  of  BRADISH,  president,  and  HOPKINS,  senator. 

0.  Meads  fy  M.  T.  Reynolds,  for  the  plaintiff  in  error. 
J.  Van  Buren,  for  the  defendant  in  error. 

WAL WORTH,  Chancellor.  This  is  one  of  that  interminable  class 
of  cases  arising  upon  the  construction  of  the  section  of  the  revised 
statutes  declaring,  that  sales  and  assignments  of  goods  and  chat- 
tels shall  be  presumed  to  be  fraudulent  when  not  accompanied 
by  an  immediate  delivery  and  an  actual  and  continued  change 
of  possession.  In  the  cases  which  have  heretofore  come  be- 
fore this  court  for  decision  the  complaint  of  the  plaintiffs  in 
error  has  been,  that  the  court  below  assumed  to  decide  up- 
on the  sufficiency  of  the  evidence  offered  to  rebut  the  pre- 
sumption of  fraud,  and  had  not  submitted  the  question  as  to 
the  fraudulent  intent  to  the  jury  as  a  fact  j  of  which  fact,  as  it 
was  supposed,  another  provision  of  the  statute  had  made  the 
jury  the  exclusive  judges.  But  in  the  case  now  before  us  the 
principal  complaint  is,  that  the  circuit  judge  left  too  much  to 
the  decision  of  the  jury,  by  instructing  them  that  it  was  foi 
them  to  decide  whether  there  was  any  good  reason  shown, 
which  they  could  approve,  why  there  had  not  been  an  im- 
mediate delivery  and  an  actual  and  continued  change  of  pos- 
session. 

In  the  case  of  Butlei  v.  Van  Wyck,  (1  HilPs  Rep.  438,)  the 
supreme  court  has  erroneously  assumed  that  in  Smith  Sf  Hoe  v. 
Acker,  (23  Wend.  Rep.  653,)  a  majority  of  the  members  of  the 
court  had  decided,  that  proof  that  a  chattel  mortgage  or  a  sale 
of  property  was  founded  upon  a  sufficient  consideration ,  was 
of  itself  enough  to  rebut  the  presumption  of  fraud  arising  from 


ALBANY,  DECEMBER,  1842.  275 


Hanford  v.  Artcher. 


a  want  of  change  of  possession  ;  and  that,  if  a  consideration 
was  proved,  whether  any  excuse  for  the  continuance  of  the  pos- 
session was  given  or  not,  the  question  of  fraudulent  intent  must 
be  submitted  to  the  jury,  as  a  matter  of  which  they  were  the 
exclusive  judges.  The  property,  in  the  case  of  Butler  v.  Van 
Wyck,  was  levied  on  in  the  possession  of  the  mortgagor,  as  in 
the  case  of  Smith  fy  Hoe  v.  Acker  ;  and  as  nothing  is  said 
about  it  in  the  opinions  of  Justices  Bronson  and  Cowen,  they 
probably  came  to  the  conclusion  that  this  court  had  also 
overruled  their  decision  on  this  point  in  Randall  v.  Cook,  (17 
Wend.  54,)  and  had  decided  that  an  action  of  replevin  for  an 
Unlawful  taking  could  be  sustained  against  the  sheriff  for  levy- 
ing upon  mortgaged  property  in  the  hands  of  the  mortgagor, 
before  the  mortgagee  had  attempted  to  assert  his  right  to  the 
possession  by  virtue  of  the  mortgage.  I  am  satisfied,  however, 
that  neither  of  those  questions  was  intended  to  be  decided  by 
a  majority  of  the  members  of  this  court  in  the  case  of  Smith,  4 
Hoe  v.  Acker.  Although  the  report  of  that  case  now  contains 
an  elaborate  opinion  of  one  of  the  senators  upon  this  last  ques- 
tion, it  will  be  seen,  by  a  reference  to  the  opinion  itself,  that 
it  must  have  been  prepared  after  that  cause  was  decided.  And 
that  the  fact  is  so,  will  be  recollected  by  such  of  the  member* 
of  this  court  as  were  present  when  the  judgment  in  that  case 
was  given.  That  opinion,  therefore,  cannot  be  considered  as 
having  been  adopted  by  the  other  members  of  this  court  who 
voted  for  a  reversal  of  the  decision  of  the  court  below,  and 
who  never  heard  of  it  until  it  appeared  in  the  printed  reports. 
To  understand  the  extent  of  the  decision  intended  to  be  made 
in  the  case  of  Smith  <$•  Hoe  v.  Acker,  a  short  explanation  ap- 
pears to  be  necessary.  That  case  was  not  argued  in  this  court, 
but  was  submitted  upon  very  imperfect  briefs  just  at  the  close 
of  the  session  for  the  hearing  of  arguments,  probably  with  a 
view  of  obtaining  a  speedy  decision  of  the  question  upon  which 
the  justices  of  the  supreme  court  had  differed  in  Doane  v.  Eddy, 
(16  Wend.  Rep.  523  ;)  or  rather  what  some  persons  supposed 
the  supreme  court  had  intended  to  decide  in  that  and  other  ca- 


276       CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  v.  Artcher. 


ses ;  viz.  that  nothing  short  of  a  physical  impossibility  would  be 
sufficient  to  excuse  the  immediate  delivery  of  the  property,  and 
rebut  the  legal  presumption  of  fraud.  And  it  will  be  seen  by 
the  report  of  the  case  of  Smith  $•  Hoe  v.  Acker,  that  the  writ- 
ten opinions  of  Senators  Edwards  and  Hopkins  were  confined 
to  that  question  alone.  Nor  had  any  other  member  of  the 
court  except  myself  looked  into  the  record  for  the  purpose  of 
ascertaining  whether  the  decision  of  the  cause  at  the  circuit  ne- 
cessarily turned  upon  that  question. 

As  it  is  a  well  settled  principle  that  if  the  court  below  has 
given  the  proper  judgment  in  the  case,  it  cannot  be  reversed 
on  a  writ  of  error,  although  the  court  or  judge  who  decided  the 
cause  has  given  an  insufficient  or  erroneous  reason  therefor, 
I  considered  it  my  duty  to  look  into  the  error  book  for  the  pur- 
pose of  seeing  whether  the  nonsuit  in  that  case  was  properly 
granted.  Upon  that  examination  I  found,  or  supposed  I  found, 
two  unanswerable  objections  to  the  plaintiff's  right  to  recover 
jn  that  suit ;  one  of  which  at  least  was  of  such  a  nature  that  it 
could  not  possibly  have  been  obviated  at  the  circuit,  even  if 
the  opinion  of  the  judge  was  wrong  upon  the  question  on  which 
he  based  the  nonsuit.  Having  very  little  time  for  investigating 
the  important  principle  involved  in  what  was  deemed  the  main 
question,  and  wishing  to  hear  it  fully  argued,  I  did  not  there- 
fore examine  it  at  all,  but  placed  my  vote  in  favor  of  the 
affirmance  of  the  judgment  upon  the  other  grounds. 

One  of  those  grounds  was,  that  the  statute  of  1833  had  de- 
clared that  a  chattel  mortgage,  which  was  not  accompanied  by 
an  immediate  delivery  of  the  property,  should  be  absolutely 
void  as  against  creditors,  unless  such  mortgage  was  filed  in 
the  clerk's  office  as  directed  by  that  act ;  and  that,  as  the 
mortgage  under  which  the  plaintiffs  claimed  had  not  been  filed, 
without  unreasonable  delay  after  it  was  executed,  the  statute  of 
1833  had  made  it  absolutely  void  as  against  creditors.  But 
what  I  considered  a  more  clear  and  unanswerable  objection  to 
the  right  of  the  plaintiffs  to  recover,  in  Smith  4*  Hoe  v.  Acker , 
was,  that  the  revised  statutes  had  made  it  the  duty  of  the  sheriff 


ALBANY,  DECEMBER,  1842.  977 


Hanford  r.  Artchcr. 


to  levy  upon  the  interest  of  a  defendant  in  goods  pledged  for  the 
payment  of  a  debt.  (2  R.  S.  366,  $  20.)  And  as  the  sheriff 
had  levied  upon  the  property  then  in  question  in  the  hands 
of  the  mortgagor,  and  before  the  plaintiffs  had  claimed  and  ex- 
ercised the  right  to  reduce  it  to  possession  by  virtue  of  their 
mortgage,  an  action  of  replevin  for  merely  levying  upon  the 
property  could  not  be  sustained ;  and  if  the  sheriff  had  wrong- 
fully detained  the  property  from  the  mortgagees,  after  such 
levy,  that  a  different  action  for  the  improper  detention  of  the 
property  should  have  been  brought.  (See  17  Wend.  Rep.  54, 
and  3  HilVs  Rep.  348.)  I  also  referred  the  court  to  the  notes 
of  the  revisers,  to  show  that  the  20th  section  of  the  article  of 
the  revised  statutes,  in  relation  to  executions  against  property, 
(2  R.  S.  366,)  was  intended  to  place  the  right  to  sell  personal 
property  mortgaged  and  continuing  in  the  possession  of  the 
mortgagor,  upon  the  same  footing  as  real  estate  mortgaged, 
while  it  continued  in  the  possession  of  the  mortgagor.  And  I 
think  I  succeeded  in  satisfying  most  of  the  members  of  this 
court,  that  by  the  statute  the  sheriff  was  authorized  to  levy 
upon  mortgaged  property  thus  situated,  and  to  sell  the  right 
of  the  mortgagor  in  the  same,  subject  to  the  right  or  claim  of 
the  plaintiffs  if  they  had  any  ;  leaving  the  question  as  to  their 
right,  and  the  extent  of  it,  to  be  settled  between  them  and  the 
purchaser.  The  report  of  the  case  shows  that  some  of  those 
members  thought  with  me,  that  the  nonsuit  was  right  upon 
that  ground  ;  as  the  objection  was  one  which,  if  raised  at  the 
circuit,  could  not  have  been  obviated  by  the  plaintiffs.  But  the 
rest  of  the  court  thought  that  question  could  not  be  raised  on 
the  writ  of  error ;  inasmuch  as  the  judge  at  the  circuit  had 
placed  his  decision  upon  another  ground.  Nothing  therefore 
can  be  considered  as  having  been  decided  in  that  case  b- 
this :  that  where  the  prima,  facie  evidence  of  fraud,  arising  from 
the  non-delivery  of  the  property,  is  rebutted  by  proof  that  the 
whole  transaction  was  fair  and  honest,  and  that  there  was  no 
intention  to  delay  or  hinder  creditors  in  the  collection  of  their 
debts,  it  is  not  absolutely  necessary  to  show  the  impossibility 


278  CASES  IN  THE  COURT  OF  ERRORS. 

Ilanford  c.  Artchcr. 

of  an  immediate  delivery  of  the  possession  of  the  property,  in 
addition  to  such  proof. 

The  case  of  Cole  $  Thurman  \.  White,  (26  Wend.  Rep. 
511,)  was  decided  upon  a  different  ground.  The  property 
mortgaged  in  that  case  was  an  undivided  interest  in  a  vessel 
which  was  absent  on  a  voyage  to  the  upper  lakes  at  the  time 
of  the  execution  of  the  mortgage  ;  and  the  vessel  was  also  run 
for  the  season  by  the  mortgagors  upon  the  joint  account  of 
themselves  and  the  other  owners.  An  immediate  delivery  of 
the  property  to  the  mortgagees  was  therefore  not  only  impos- 
sible, from  the  absence  of  the  vessel,  but  would  also  have  been 
inconsistent  with  the  rights  of  the  other  part  owners,  who  were 
authorized  to  insist  upon  the  performance  of  the  agreement  to 
run  the  vessel  for  the  season,  on  the  joint  account  of  the  owners. 
I  placed  my  vote,  in  that  case,  also  upon  the  ground  that  the  ad- 
mission of  the  plaintiff's  counsel  that  the  debt  for  which  the  mort- 
gage was  given  was  actually  due  and  that  the  mortgage  was 
given  at  the  solicitation  of  the  mortgagees  for  the  purpose  of 
securing  that  debt,  was  equivalent  to  an  admission  that  the  se- 
curity of  the  debt  was  the  sole  object  of  the  giving  of  the  mort- 
gage, and  not  the  ostensible  object  merely. 

There  is  nothing,  therefore,  in  either  of  the  decisions  refer- 
red to,  from  which  it  can  properly  be  inferred  that  a  majority 
of  the  members  of  the  court  ever  intended  to  decide  that,  upon 
mere  proof  that  a  sale  or  assignment  of  goods  was  upon  an 
adequate  consideration,  the  jury  was  legally  authorized  to  find 
that  the  sale  or  assignment  was  valid,  although  it  was  not  ac- 
companied by  an  immediate  delivery  of  the  property  and  an 
actual  and  continued  change  of  possession.  On  the  contrary, 
Senator  Hopkins,  in  his  opinion  in  Smith  Sf  Hoe  v.  dicker,  dis- 
tinctly states  that  the  statute  throws  the  onus  upon  the  party 
claiming  under  the  sale  or  mortgage,  not  accompanied  with 
an  actual  delivery  of  possession,  of  proving  not  only  that  the 
transaction  was  in  good  failh,  for  a  good  and  valuable  consider- 
ation, but  also  such  circumstances  of  publicity  and  reasonable- 


ALBANY,  DECEMBER,  1842.  2?9 


Hanford  r.  Artcher. 


ness  as  to  amount,  time,  value,  and  quantity  of  property,  diffi- 
culty or  inconvenience  of  removal,  advantages  of  allowing  it 
to  remain,  or  other  circumstances  agreeable  with  the  ordinary 
course  of  business  and  fair  dealing,  as  shall  satisfy  the  jury  that 
there  was  not  any  intent  to  defraud,  hinder,  or  delay  creditors. 
And  even  in  the  published  opinion  of  Senator  Verplanck, 
who  I  believe  has  gone  as  far  as  any  member  of  this  court 
has  ever  yet  gone  in  sustaining  sales  and  assignments  of  proper- 
ty without  a  change  of  possession,  he  says :  "  A  valuable  consid- 
eration, when  satisfactorily  proved,  affords  a  strong  indication 
of  good  faith  ;  but  still,  this  alone  may  not  be  inconsistent  with 
the  possible  existence  of  a  collusive  design  to  impose  upon 
others.  As  it  is  to  be  made  manifest  that  there  was  no  such 
design,  there  should  be  evidence  of  some  fact  inconsistent  with 
that  intent."  It  is  true  he  follows  this  by  an  intimation  that 
proof  of  mere  family  kindness  will  be  sufficient  to  rebut  the 
presumption  of  fraud,  or  proof  of  other  facts  which  could  al- 
ways be  adduced  by  the  parties  to  a  fraudulent  sale  j  the  effect 
of  which  construction  of  the  statute  would  be  to  defeat  the 
whole  object  and  intent  of  the  legislature. 

The  legislature  has  declared  that  the  question  of  fraudulent 
intent,  in  all  cases  arising  under  the  statute,  shall  be  a  question 
of  fact ;  not,  as  some  have  erroneously  supposed,  a  question 
which  must  in  all  cases  be  submitted  to  the  jury,  whether  there 
is  or  is  not  sufficient  legal  evidence  to  support  the  charge  of 
fraud  on  the  one  hand  or  to  rebut  it  on  the  other,  where  the 
onus  of  disproving  it  is  thrown  by  law  upon  the  purchaser  or 
mortgagee.  But  the  legislature  has  merely  declared  the  question 
of  fraud  to  be  one  cf  fact,  as  contradistinguished  from  a  question 
of  law.  To  elucidate  this  distinction,  it  is  only  necessary  to  allude 
to  the  case  which  gave  rise  to  the  provision  of  the  revised  stat- 
utes declaring  that  the  question  of  fraudulent  intent  shall  be 
one  of  fact.  (See  3  R.  S.  658,  2d  ed.)  In  that  case,  (Jack- 
son v.  Sewardj  5  Coven's  Rep.  67,)  a  father  who  owed  some 
debts  and  had  a  large  property,  made  a  voluntary  conveyance 


280  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  v.  Artcher. 

or  gift  of  a  part  of  his  property  to  one  of  his  sons,  but  leaving, 
as  he  then  supposed,  ample  funds  in  his  own  possession  and 
control  to  pay  all  his  debts,  and  to  provide  for  the  future 
support  of  himself  and  his  family.  From  unforeseen  occur- 
rences he  was  subsequently  charged  and  rendered  personally 
responsible  for  a  large  debt  arising  from  a  contingent  liability 
created  before  the  conveyance.  And  though  it  was  admitted 
on  the  trial,  and  was  afterwards  found  in  the  form  of  a  special 
verdict,  that  the  conveyance  was  made  without  any  intention 
of  delaying  or  defrauding  any  of  his  creditors,  the  supreme 
court,  in  accordance  with  the  decision  of  Chancellor  Kent  in 
Reade  v.  Livingston,  (3  John.  Ch.  Rep.  481,)  held  that  the 
voluntary  deed  to  the  son  was  fraudulent  in  law  as  against 
creditors  then  existing,  and  that  no  proof  could  rebut  the  legal 
presumption  of  such  fraudulent  intent.  The  correctness  of 
those  decisions  was  questioned  when  the  case  of  Seward  v. 
Jackson  came  before  this  court,  though  the  decision  here  ap- 
pears to  have  turned  upon  a  different  question.  It  is  admitted, 
however j  by  the  revisers,  in  their  note  to  that  section,  that  the 
modern  cases  in  England  fully  established  the  doctrine  of 
Chancellor  Kent,  that  voluntary  conveyances  were  absolutely 
void  as  against  existing  creditors  and  subsequent  purchasers. 
And  this  section  of  the  revised  statutes,  declaring  that  the  ques- 
tion of  fraudulent  intent,  in  all  cases  arising  under  the  provis- 
ions of  that  chapter,  should  be  deemed  a  question  of  fact  and 
not  of  law,  was  introduced  for  the  express  purpose  of  letting 
in  proof  in  such  cases  to  rebut  the  legal  presumption  of  fraud- 
ulent intent  arising  from  the  fact  that  the  conveyance  was  not 
founded  upon  a  valuable  consideration.  It  is  true,  this  section, 
when  it  was  drawn  by  the  revisers,  was  not  intended  to  apply 
to  the  case  of  a  sale  or  assignment  of  personal  property  with- 
out delivery  and  an  actual  and  continued  change  of  posses- 
sion j  for,  in  relation  to  that  they  had  adopted  the  only  safe 
and  effectual  mode  of  guarding  against  frauds  of  that  charac- 
ter, by  declaring  all  such  sales  and  assignments  absolutely 
void  as  against  creditors  and  subsequent  purchasers.  If  the 


ALBANY,  DECEMBER,  1842.  £81 


Hanford  t>.  Artcher. 


legislature  had  followed  this  recommendation  of  the  revisers, 
they  would  have  prevented  innumerable  frauds  which  are  con- 
stantly practiced  under  pretended  sales,  assignments  for  the 
alleged  benefit  of  creditors,  and  chattel  mortgages  ostensibly 
given  to  secure  honest  debts  only,  when,  in  two  cases  out  of 
three,  such  mortgages  are  given  for  the  purpose  of  enabling 
the  mortgagor  to  retain  the  use  of  his  property  for  a  longer 
period,  and  to  prevent  its  being  levied  upon  by  creditors  who 
are  pressing  for  the  payment  of  their  honest  dues.  It  wouU 
also  have  saved  to  the  people  of  the  state  the  immense  sums 
which  are  now  annually  spent  in  litigating  the  question  of 
fraudulent  intent  in  such  cases.  But  the  legislative  power, 
in  its  wisdom,  thought  otherwise  j  and,  by  the  alteration  of  this 
provision  from  that  which  was  recommended  by  the  revisers, 
has,  as  I  think,  made  the  fourth  section  of  the  third  title  appli- 
cable to  it. 

There  is  no  reason  however  to  believe  that  the  legislature, 
by  either  of  these  provisions,  intended  to  change  the  law  in  re- 
lation to  the  manner  in  which  matters  of  fact  were  to  be  tried 
and  decided,  or  to  give  the  jury  in  such  cases  the  absolute  and 
sole  right  to  judge  of  the  materiality  or  the  sufficiency  of  the 
evidence  to  establish  an  intention  to  defraud,  or  to  rebut  the  pre- 
sumption of  such  intention  when  it  was  necessary  to  do  so. 
The  questions  whether  the  defendant  made  a  promissory  note, 
and  whether  he  has  paid  it,  are,  equally  with  the  questions  of 
intent  arising  under  this  statute,  questions  of  fact  and  not  of 
Jaw.  But  it  is  still  the  duty  of  the  court  to  decide  what  is 
proper  evidence  to  prove  that  the  defendant  made  the  note,  or 
to  establish  the  fact  that  it  has  been  paid  ;  and  also  to  decide 
whether  the  plaintiff  has  introduced  sufficient  evidence  of  the 
making  of  the  note  to  authorize  the  jury  to  find  a  verdict  in  his 
favor,  and  if  not,  to  nonsuit  the  plaintiff.  On  the  other  han-i. 
if  the  making  of  the  note  is  established,  and  the  evidence  on 
the  part  of  the  defendant  is  wholly  insufficient  to  authorize  a 
jury  to  find  the  fact  of  payment,  it  is  not  only  the  right  but  the 

VOL.  IV.  36 


282  CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  B.  Artcher. 


duty  of  the  court  so  to  instruct  them,  if  requested  to  do  so  by 
the  counsel  of  the  other  party. 

So  in  cases  arising  under  the  statute  of  frauds,  where  the  act 
in  question  is  not  necessarily  fraudulent,  but  depends  altogeth- 
er upon  the  intent  with  which  it  was  done,  if  the  party  who  is 
bound  to  rebut  the  presumption  of  fraud  arising  from  the  non- 
delivery of  the  property,  by  proving  that  the  assignment  was 
made  in  good  faith  and  without  any  intent  to  delay  or  hinder  his 
creditors  in  the  collection  of  their  debts  or  to  defraud  them  or 
subsequent  purchasers  of  the  property,  wholly  fails  to  give  such 
evidence  as  the  settled  principles  of  law  require,  to  rebut  the 
presumption  of  fraud,  it  is  the  right  of  the  court  to  say  so. 
But  if  the  proof  is  sufficient  in  other  respects  to  rebut  the  pre- 
sumption that  there  was  any  intention  to  delay  or  hinder  credi- 
tors in  the  collection  of  their  debts,  and  a  satisfactory  reason  is 
given  for  the  non-delivery  of  the  property,  which  is  consistent 
with  the  honesty  of  the  transaction,  I  think  it  is  not  necessa- 
ry that  an  impossibility  to  make  an  immediate  delivery  of  the 
property  should  be  proved,  to  authorize  the  jury  to  find  there 
was  no  fraud  in  the  case.  But,  as  in  other  questions  of  fact, 
every  case  must  in  some  measure  depend  upon  its  circumstances. 

The  statute,  however,  has  made  the  non-delivery  of  the  pro- 
perty evidence  of  fraud  j  as  the  retaining  of  possession,  after 
an  absolute  sale  or  assignment,  without  any  good  reason  shown 
therefor,  is  inconsistent  with  the  supposition  that  the  vendor 
did  not  intend  to  secure  a  benefit  to  himself  from  the  temporary 
use  or  management  of  the  property.  And  a  reservation  of  such 
a  benefit  to  himself,  where  the  property  by  the  sale  or  assign- 
ment is  placed  beyond  the  reach  of  creditors,  is  of  itself  a  fraud 
upon  such  creditors ;  as  it  does  delay  and  hinder  them  in  the 
collection  of  their  debts.  In  the  case  of  an  absolute  sale  or 
assignment,  therefore,  I  think  it  is  necessary,  in  addition  to 
other  proof  of  the  bona  fides  of  the  transaction,  to  furnish  a 
satisfactory  excuse  to  the  court  and  jury  for  the  non-delivery 
of  the  property.  And  certainly,  proof  that  it  was  necessary  or 
convenient  for  the  defendant  or  his  family  to  have  the  use  of 


ALBANY,  DECEMBER,  1842. 


Hanford  c.  Artcher. 


the  property  which  he  has  sold  and  received  his  pay  for,  or 
that  he  can  sell  and  dispose  of  it  more  beneficially  than  the  trus- 
tee to  whom  he  has  entrusted  the  sale  by  his  assignment,  is  not 
such  a  reason  as  should  be  satisfactory  to  any  one.  For  those 
are  reasons  to  show  that  he  would  not  have  sold  or  assigned  the 
property  at  all,  unless  his  real  object  had  been  to  place  the 
property  beyond  the  reach  of  his  creditors,  and  thus  to  delay 
and  hinder  them  from  collecting  their  debts.  And  when  a 
debtor  in  failing  circumstances,  whose  property  is  about  to  be 
levied  upon  by  one  creditor,  mortgages  it  to  another  for  the 
purpose  of  preventing  such  levy,  thereby  securing  to  himself 
the  temporary  use  and  benefit  of  the  property,  it  is  a  fraud 
upon  the  first  creditor,  although  such  mortgage  is  given  to 
secure  an  honest  debt.  The  debtor  has  a  right  to  prefer  one 
creditor  to  another ;  but  he  has  neither  the  legal  nor  the  moral 
right,  in  giving  such  preference,  to  do  it  in  such  a  way  as  to 
secure  a  benefit  to  himself  at  the  expense  of  the  creditor  who 
has  a  right  to  his  debt  immediately,  and  who  may  himself 
perhaps  be  ruined  by  being  deprived  of  the  use  of  his  money, 
while  the  debtor  is  thus  delaying  payment  to  obtain  a  better 
price  for  his  property  or  to  secure  to  himself  the  advantage 
of  the  temporary  use  of  it. 

For  these  reasons  I  think  the  circuit  judge  was  right  in  sub- 
mitting the  question  to  the  jury,  as  a  proper  subject  for  their 
consideration,  whether  the  plaintiff  had  shown  any  good  reason, 
\vhich  was  satisfactory  to  them,  why  there  had  not  been  an 
immediate  delivery  of  the  property  and  an  actual  and  continu- 
ed change  of  possession,  in  case  they  should  find  that  it  con- 
tinued in  the  possession  of  Norton  until  it  was  levied  upon  by 
the  execution. 

Besides,  upon  the  whole  charge  taken  together,  I  think  the 
question  of  fraud  or  no  fraud  was  fairly  submitted  to  the  jury 
as  a  question  of  fact  for  them  to  decide.  And  unless  this-  court 
is  prepared  to  place  itself  in  the  absurd  position  of  saying 
that  the  judge  is  to  decide  the  question  of  fraudulent  intent 
wherever  there  is  any  danger  that  the  jury  may  be  against  the 


284  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  v.  Artcher. 

party  on  whom  the  onus  of  disproving  the  fraud  lies,  and  is 
only  to  submit  the  question  to  the  jury  when  they  will  proba- 
bly find  in  favor  of  the  bona  fides  of  the  transaction,  this  ver- 
dict cannot  be  disturbed  on  the  ground  that  the  case  was  not 
properly  submitted. 

The  question  whether  the  employment  of  Norton  as  clerk, 
and  the  management  of  the  property  by  him,  was  bona  fide,  or 
whether  the  original  assignment  and  the  sale  to  Hanford  and  the 
putting  in  of  Norton  to  manage  the  concern,  was  not  a  mere  de- 
vice to  cover  up  the  property  and  place  it  beyond  the  reach  of 
creditors,  was  a  question  of  fact  for  the  jury  to  decide.  The 
judge  was  right  therefore  in  refusing  to  charge  as  requested  in 
relation  to  that  matter.  Nor  would  it  have  been  proper,  after 
the  charge  which  had  been  given,  for  the  judge  again  to  have 
charged  the  jury  upon  the  other  point,  which  was  necessarily 
embraced  in  the  instructions  already  given  to  them  j  especially 
as  this  new  proposition  was  couched  in  language  which  was 
intended  to  draw  the  attention  of  the  jury  from  what  the  stat- 
ute had  declared  to  be  conclusive  evidence  of  fraud  until  the 
contrary  was  proved. 

The  question  put  to  the  witness  Russell  was  properly  over- 
ruled .  The  statute  having  declared  what  should  be  the  legal  evi- 
dence of  fraud,  and  thrown  upon  Hanford  the  onus  of  proving 
that  the  assignment  was  made  by  Norton  in  good  faith,  without 
any  intent  to  defraud  his  other  creditors,  that  presumption  of 
fraud  could  not  be  disproved  by  a  general  answer  of  the  assignee 
that  there  was  no  fraud  in  the  case,  so  far  as  concerned  himself. 
The  witnesses  must  state  facts,  and  are  not  to  be  required  or 
permitted  to  answer  leading  questions  which  involve  the  whole 
matter  in  issue  in  such  cases. 

It  is  not  necessary  for  me  to  say  whether  I  should  have  ar- 
rived at  the  same  conclusion  that  the  jury  did  upon  the  ques- 
tion of  fact  involved  in  this  case.  But  as  I  am  perfectly  satisfied 
that  no  legal  principle  has  been  violated  which  can  justify  this 
court  in  reversing  the  judgment  for  error  in  law,  I  do  not  feel 
authorized  to  usurp  the  province  of  the  jury  in  this  case,  and 


ALBANY,  DECEMBER,  1842. 


Hanford  c.  Aiteber. 


to  reverse  the  judgment  because  the  jury  may  have  decided 
wrong  upon  a  matter  of  fact.  I  shall,  therefore,  vote  for  an 
affirmance  of  the  judgment. 

HOPKINS,  Senator.  This  court  in  the  case  of  Smith  &  Hoe 
v.  Jlcker,  (23  Wendell,  653,)  decided  two  important  questions 
arising  under  the  revised  statutes  relative  to  sales  and  mort- 
gages of  personal  property  not  accompanied  with,  delivery  and 
change  of  possession.  First,  that  the  party  claiming  under 
such  sale  or  mortgage  may  rebut  the  presumption  of  fraud  aris- 
ing from  want  of  delivery  and  change  of  possession,  by  prov- 
ing that  the  transaction  was  in  good  faith  and  without  any  in- 
tent to  defraud  creditors — not  by  showing  some  mere  excuse  or 
reason  that  had  been  deemed  necessary  by  the  supreme  court, 
why  there  had  not  been  a  change  of  possession,  but  by  proper 
and  relevant  testimony  to  show  the  real  bona  fides  of  the  trans- 
action. And  second,  that  the  question  of  intent  arising  in  the 
case,  is  one  of  fact  for  the  jury  to  try. 

In  the  present  case,  the  circuit  judge  so  far  conformed  to 
that  decision  as  to  submit  the  cause  to  the  jury  ;  and  the  ques- 
tion remaining  is,  did  he  submit  the  whole  bona  fides  of  the 
case  to  their  consideration  ?  Or  did  he  not  rather,  in  his 
charge,  limit  the  consideration  of  the  jury,  (in  case  they  found 
that  possession  of  the  property  had  not  been  changed,)  to  the 
mere  enquiry  whether  there  was  any  excuse,  or,  to  use  his  own 
language,  "  any  good  reason,"  why  possession  had  not  been 
changed  ?  In  his  charge  he  instructed  the  jury  that  "  if  they 
found  that  the  property  remained  in  the  possession  of  Norton 
until  levied  on,  then  they  must  enquire  whether  there  was  any 
good  reason  shown  by  the  plaintiff  which  they  could  approve, 
why  there  had  not  been  an  immediate  delivery  and  an  actual 
and  continued  change  of  possession."  Again,  after  referring 
to  former  decisions  of  the  supreme  court  to  show  what  had 
been  decided  to  be  good  reasons,  "  he  further  directed  the  jury 
that  if  they  found  sufficient  reasons  for  the  possession  not  being 
changed,  then  their  verdict  must  be  for  the  plaintiff."  Al- 


286  CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  v.  Artcher. 


though  in  one  part  of  his  charge  he  says,  "  that  it  is  competent 
for  the  plaintiff  to  rebut  the  presumption  of  fraud  by  showing 
thai  the  assignment  was  made  in  good  faith  and  without  any 
intent  to  defraud  creditors,"  he  qualifies  the  expression  by 
adding  in  the  same  sentence,  "  that  the  presumption  of  fraud 
arose  from  failure  to  accompany  the  assignment  with  delivery 
and  change  of  possession  ;  that  it  was  for  the  plaintiff"  to  ex- 
plain such  failure,  if  the  jury  thought  it  had  occurred,  and  to 
show  some  good  reason  for  it.  If  he  had  so  done,  the  jury 
would  find  a  verdict  for  the  plaintiff;  otherwise,  their  verdict 
would  be  for  the  defendant."  Thus,  in  concluding  his  charge, 
having  informed  the  jury  what  the  supreme  court  had  decided 
to  be  good  reasons  to  explain  failure  of  delivery  and  change 
of  possession,  he,  in  substance,  the  third  time,  instructed  the 
jury  that  it  was  necessary  for  the  plaintiff  to  explain  such  fail- 
ure, if  it  had  occurred,  and  show  some  good  reason  for  it ;  and 
upon  this  their  verdict  must  depend. 

He  seemed  to  put  the  whole  issue  upon,  this  point,  and  in 
substance  declared  to  the  jury  not  only  that  such  good  reason 
for  want  of  change  of  possession  was  Jiecessary,  but  that  it  was 
all  that  was  necessary.  He  does  not  instruct  the  jury  to  en- 
quire whether  there  was  any  consideration  even  or  indebted- 
ness. Nothing  was  required  and  nothing  allowed  to  rebut  the 
presumption  of  fraud,  but  some  good  reason  why  possession 
was  not  changed.  This  is  more  clearly  evident  wrhen,  upon  be- 
ing requested,  the  judge  refused  to  charge  specifically,  without 
the  qualification  as  to  the  good  reason,  "  that  if  from  the  facts 
proved  and  given  in  evidence,  they  believed  that  the  saie  was 
in  good  faith  and  without  any  intention  to  defraud  creditors, 
such  sale  was  valid."  But  even  if  he  did  not  intend  to  instruct 
the  jury  that  such  proof  of  good  reasons  for  non-delivery  was 
necessary,  yet  the  charge  was  eminently  calculated  to  mislead 
the  jury  in  that  respect.  If,  under  charges  like  this,  juries 
may  be  tied  down  to  the  consideration  of  good  reasons  required 
by  the  court,  to  excuse  a  want  of  delivery,  and  are  prevented 
from  considering  the  whole  bona  fides  of  the  case,  the  statute 


ALBANY,  DECEMBER,  1842. 
Hanford  r.  Artcber. 


is  as  much  nullified  as  if  the  court  refuse  to  submit  the  case  to 
the  jury  at  all,  but,  as  heretofore,  take  it  into  their  own  hands. 
The  same  result  is  arrived  at,  only  in  a  different  way.  The 
case  is  in  form  submitted  to  the  jury,  but  under  instructions 
leading  to  the  same  final  result  as  if  decided  by  the  court. 

The  trial  of  the  cause  took  place  prior  to  the  decision  of 
this  court  in  Smith  <$•  Hoe  v.  Acker  ;  and  it  is  not  surprising 
that  the  charge  of  the  judge  is  found  to  conform  to  the  opinions 
of  the  supreme  court.  Since  that  decision,  it  is  hardly  reasona- 
ble to  suppose  that  such  a  charge  would  be  given,  unless,  pos- 
sibly, some  circuit  judge  should  be  found  to  concur  in  the 
views  of  the  learned  justice  who  delivered  the  dissenting  opin- 
ion in  the  case  of  Butler  v.  Van  Wyck,  (1  Hill,  438,)  and  de- 
ny the  authority  of  the  decisions  of  the  court  of  last  resort  as 
conclusive  upon  inferior  tribunals  whose  decisions  are  subject 
to  its  review  and  correction. 

Since  such  a  doctrine  has  been  gravely  argued  as  regards 
the  decisions  of  this  court,  and  an  attempt  made  particularly 
to  lessen  the  force  of  the  decision  in  the  case  of  Smith  if  Hoe 
v.  Jlcker  as  authority  settling  the  law  of  the  question  arising 
under  the  statute,  it  uiay  not  be  improper  to  make  some  re- 
marks vindicating  the  decision  of  this  court  in  that  case.  It 
may  have  been  supposed  that  the  case  did  not  have  the  con- 
sideration which  the  importance  of  the  question  merited.  It 
is  erroneously  stated  by  the  learned  dissenting  justice,  that  but 
one  opinion,  which  (with  how  much  propriety  it  does  not  per- 
haps become  me  to  say)  is  calied  the  "  prevailing  opinion," 
was  delivered  on  that  occasion — whereas,  in  fact,  several  opin- 
ions were  read  and  delivered,  fully  concurring  in  the  principal 
points  decided.  Senators  Verplanck  and  Edwards  examined 
the  question  at  much  length  and  with  their  usual  ability,  com- 
ing to  the  same  conclusions.  The  members  expressed  their 
opinions  perhaps  more  freely  than  usual  in  deciding  cases  iti 
this  court.  Twenty-one  members,  being  eveiy  member  pres- 
ent who  voted  upon  the  principal  question,  voted  for  reversing 
the  decision  of  the  supreme  court.  Four  members  voted  for 


288  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  t>.  Artcher. 

affirmance,  but  expressly,  as  appears  by  the  report  of  their  opin- 
ions, upon  other  grounds — on  points  not  raised  at  the  trial,  nor 
considered  in  the  supreme  court,  nor  in  the  argument  in  this 
court.  Of  the  four  who  voted  for  affirmance,  not  one  expressed 
any  opinion  dissenting  from  the  views  of  the  majority  on  the 
main  question,  or  concurring  with  the  opinion  of  the  supreme 
court.  Indeed,  as  regards  the  vote  upon  the  principal  questions 
decided,  it  may  be  said  to  have  been  unanimous  or  very  nearly  so. 
But  it  seems  to  be  contended,  that  the  decision  of  this  court 
in  that  case  ought  not  to  be  deemed  authority,  because  certain 
ancient  decisions  were  not  sufficiently  heeded  or  alluded  to  in 
the  "  prevailing  opinion" — decisions  which,  it  is  admitted  by 
the. learned  dissenting  justice  himself,  were  made  before  the 
revised  statutes  under  which  the  question  arose  took  effect. 
The  cases  of  Sturtevant  v.  Bollard^  (9  John.  R.  337,)  and  Div- 
ver  v.  McLaughlin,  (2  Wendell,  596,)  are  cited  to  show  that 
the  question  of  fraud,  arising  from  non-delivery,  is  a  question 
of  law  for  the  court  to  decide.  Now  it  was  wholly  unneces- 
sary to  refer  to  any  decisions  to  discover  such  to  be  the  case, 
for  the  statute  itself  declares  that,  the  possession  being  un- 
changed, fraud  shall  be  presumed  ;  and  that  of  course  is  a 
question  of  law,  or  a  legal  presumption  for  the  court  to  de- 
clare. But  the  statute,  by  a  further  provision,  permits  a  ques- 
tion of  intent  to  be  raised  to  rebut  this  legal  presumption  of 
fraud ;  and  this  question  of  intent,  the  statute  expressly  de- 
clares shall  be  a  question  of  fact  and  not  of  law.  Again,  an 
expression  in  Twyne's  case  is  quoted  to  show  "  that  continua- 
tion of  possession  in  the  donor  is  a  sign  of  a  trust" — of  course 
not  positive  evidence,  but  a  mere  sign  of  a  trust.  Now  it  was 
equally  unnecessary  to  refer  to  any  authority  on  this  point ; 
for  our  statute  is  sufficiently  explicit,  and  makes  it  not  merely  a 
sign  of  a  trust)  but  declares  it  presumptive  evidence  of  fraud. 
But  the  further  provision  of  the  statute  allows  the  presumption 
of  fraud  to  be  rebutted  by  evidence  of  good  faith  j  which  pro- 
vision the  decisions  of  the  supreme  court  declare  means  noth- 


ALBANY,  DECEMBER,  1842.  289 


Hanford  t>.  Artcher. 


ing,  or  at  least  something  entirely  different  from  what  its  lan- 
guage plainly  imports.  It  was  equally  unnecessary  to  look 
into  the  prior  decisions  to  discover  that  the  object  of  the  stat- 
ute was  to  provide  a  remedy  for  more  easily  establishing  fraud, 
by  presuming  it  in  the  first  instance,  in  transactions  which, 
however,  if  shown  to  be  free  from  fraud,  are  to  be  upheld  as 
legal.  A  partial  reference  to  a  remark  of  the  kind  contained 
in  the  "prevailing  opinion,"  seems  to  be  made  the  ground  of 
an  inference  that  the  decisions  upon  the  question  might  not 
have  been  examined — an  inference  contradicted  by  the  whole 
tenor  of  the  opinion  itself,  which  not  only  acknowledged  the 
embarrassments  arising  from  the  decisions  and  conflicting  opin- 
ions with  which  legal  talent  had  already  encumbered  the  re- 
ports, but  was  itself  mainly  occupied  by  an  examination  of  the 
leading  cases  decided  in  the  supreme  court  since  the  existence 
of  the  statute  under  which  the  question  arose. 

The  senator  who  is  said  to  have  delivered  the  "prevailing  opin- 
ion" stated  in  the  outset,  that  the  question  arose  under  the  revised 
statutes;  and  although  he  conceded,  as  a  reason  for  examining 
the  question  at  much  length,  that  his  views  conflicted  with  the 
course  of  decisions  of  the  supreme  court,  which  he  nevertheless 
contended  to  be  erroneous,  the  remark  was  of  course  made  with 
reference  to  the  decisions  of  that  court  since  the  passage  of 
the  statutes  under  which  the  question  arose.  To  infer,  from 
that  remark,  a  general  admission  that  the  decisions  of  the  su- 
preme court  on  the  subject,  including  decisions  prior  to  the  re- 
vised statutes,  had  been  uniform,  is  as  clear  and  palpable  a 
misconstruction  of  its  meaning,  as  was  the  effort  illogical  and  un- 
just to  make  the  same  remark  of  a  single  senator  the  ground  of 
an  argument  or  charge  that  this  entire  court  had  avowedly  dis- 
regarded a  uniformity  of  decisions  known  not  to  exist.  It  is 
needless  to  say  that  many  of  the  decisions  made  prior  to  the 
revised  statutes  on  the  same  subject,  (though  not  on  the  same 
question,  which  could  not  arise  till  after  the  revised  statutes,) 
did  not  conflict  with  the  doctrine  of  the  "  prevailing  opinion," 
but  sustained  it.  (See  Barrows  v.  Paxton,  5  John.  R.  258 ; 

VOL.  IV.  37 


290  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  v.  Artcher. 

Beats  v.  Gurnsey^  8  id.  452 ;  Bissell  v.  Hopkins^  3  Cowen, 
188.)  The  decisions  prior  to  the  revised  statutes,  so  far  as 
applicable  at  all,  not  only  in  many  instances  conflict  with  the 
later  decisions  of  the  supreme  court,  but  often  with  each  other, 
leaving  the  law  in  fact  unsettled  and  uncertain  ;  and  it  was  to 
relieve  it  from  this  uncertainty  that  the  provision  was  intro- 
duced into  the  revised  statutes  of  1830,  putting  the  question 
(if  indeed  there  need  to  have  been  any  question  left)  upon  quite 
different  grounds  from  what  it  had  been.  The  still  later  act  of 
1833,  requiring  mortgages  of  personal  property  to  be  filed,  when 
not  accompanied  with  delivery  of  possession,  was  also  deemed  to 
have  affected  the  question,  as  amounting  to  a  legislative  ex- 
pression, that  such  mortgages  are  to  be  deemed  valid  if  the 
requirements  of  the  legislature  in  regard  to  them  are  complied 
with  j  that  is,  if  the  party  claiming  under  such  a  mortgage 
shall  show  it  to  have  been  made  in  good  faith,  and  also  that  he 
has  given  public  notice  of  its  existence  by  filing  the  original  or 
a  copy — thus,  to  some  extent,  making  the  question  of  still  more 
recent  date. 

The  decisions  of  the  supreme  court,  annulling,  as  it  were,  the 
provisions  of  the  revised  statutes,  it  is  believed  were  very  gen- 
erally considered  by  the  bar  to  be  erroneous,  and  not  as  having 
settled  the  law  upon  the  subject.  Even  so  late  as  January 
term,  1837,  only  the  year  before  the  case  of  Smith  fy  Hoe  v. 
Acker  was  tried,  the  learned  chief  justice  of  that  court,  in  his 
dissenting  opinion  in  Doane  v.  Eddy,  (16  Wend.  529,)  held  the 
doctrine  settled  by  this  court  in  Smith  4*  Hoe  v.  Acker  to  be 
the  true  doctrine.  The  same  opinion  was  entertained  by  the 
late  Chief  Justice  Savage.  Nor  has  the  doctrine  of  the  two  asso- 
ciate justices  of  that  court  been  wholly  acquiesced  in.  The 
case  of  Stoddard  v.  Butler,  (20  Wend.  507,)  which  came  here 
on  appeal  from  the  court  of  chancery,  involved  the  same  question, 
connected  however  with  a  question  of  fraud  in  fact.  In  that 
case  the  question  was  very  ably  examined.  The  decisions,  an- 
cient and  modern,  were  reviewed  at  great  length  and  with  emi- 
nent ability  by  Senator  Dickinson,  now  chosen  to  preside  over 


ALBANY,  DECEMBER,  1842.  291 


Hanford  t>.  Artcher. 


the  court  of  which  he  was  then  a  distinguished  member,  and 
also  by  Senator  Verplanck,  another  distinguished  member  of 
the  court,  both  coming  to  the  conclusion  that  the  decisions  of 
the  supreme  court  on  the  question  were  erroneous.  It  is  said 
that  a  majority  of  the  members  were  of  the  same  opinion ; 
but  as  some  who  concurred  with  them  on  that  point  voted 
upon  the  ground  of  actual  fraud,  the  court,  was  divided  and 
the  question  consequently  left  as  unsettled  as  ever ;  except 
that  the  impression  gained  strength,  that  if  a  case  should  be 
brought  to  this  court  free  from  other  questions,  the  doctrine 
of  the  supreme  court  would  be  overruled — as  in  fact  was 
the  case  upon  the  first  opportunity  that  afterwards  occurred. 
Three  members  of  the  court,  the  President  and  Senators 
Tallmadge  and  Edwards,  who  voted  for  affirmance  in  that  case, 
afterwards  voted  for  reversal  in  the  case  of  Smith  4*  Hoe  v. 
Acker;  and  two  of  them  declared  on  that  occasion  that  they 
should  have  voted  for  reversal  in  the  case  of  Stoddard  v.  But- 
ler, only  that  they  voted  on  other  grounds.  So  if  that  case 
had  presented  the  naked  question,  it  seems  that  it  too  would 
have  been  reversed.  And  yet  that  case  is  cited  by  the  learned 
dissenting  justice,  to  show  that  the  question  had  been  settled 
by  this  court  in  favor  of  the  supreme  court  rule.  Other  high 
judicial  tribunals,  however,  of  this  state,  seemed  to  view  it 
differently  ;  and,  even  before  the  decision  of  this  court  in  Smith 
4*  Hoe  v.  Acker,  wholly  rejected  the  doctrines  of  the  supreme 
court,  or,  it  should  rather  be  said,  of  a  majority  of  that  court,  on 
the  question.  See  Lewis  v.  Stevenson,  (2  Hall,  63,)  decided  in 
the  superior  court  of  the  city  of  New- York  in  June  term,  1839, 
and  Lee  v.  Huntoon,  (1  Hoffm.  Ch.  R.  447,)  decided  by  the  able 
assistant  vice-chancellor  Hoffman,  February,  1840.  With 
what  propriety,  then,  can  the  decisions  of  the  supreme  court 
be  said  to  have  become  the  settled  law  of  the  land,  and  not 
subject  to  be  examined  and  overruled  by  a  court  expressly  con- 
stituted for  the  purpose  of  reviewing  and  correcting  the  erro- 
neous decisions  of  that  and  other  courts  ?  And  such,  too,  are 
the  decisions  constituting  "the  shackles  of  legal  authority ,n 


292  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  o.  Artcher. 

which,  it  is  complained,  were  thrown  off  in  deciding  the  case  of 
Smith  fy  Hoe  v.  Jlcker. 

But  it  is  also  argued  by  the  learned  dissenting  justice,  that 
the  omission  of  the  legislature  of  1839  to  pass  a  law  legal- 
izing mortgages  of  personal  property  without  a  change  of  pos- 
session, is  to  be  taken  as  a  legislative  construction  in  favor  of 
the  supreme  court  rule.  If  any  thing  can  legitimately  be  inferred 
from  this  omission,  it  would  rather  seem  to  be  that  the  mem- 
bers of  the  legislature  were  of  opinion  that  no  further  legisla- 
tion was  necessary  to  legalize  all  that  could  be  proved  to  be 
fair  and  honest ;  or  possibly  they  thought  the  law  to  that  effect 
could  not  be  made  plainer,  and  if  not  already  understood  or 
heeded  by  courts,  it  would  be  useless  to  pass  any  further  law 
upon  the  subject,  or  to  endeavor  to  bring  the  law  within  then 
comprehension.  At  all  events,  it  appears  that  the  very  next 
year,  one  branch  of  the  legislature,  in  its  judicial  capacity, 
consisting  of  at  least  three  fourths  of  the  same  persons  who 
composed  it  in  1839,  did,  in  deciding  the  very  case  of  Smith 
fy  Hoe  v.  Jicker^  give  a  construction  quite  at  variance  with  the 
supreme  court  doctrine  j  since  which,  two  sessions  of  the  legis- 
lature have  passed,  silently  acquiescing  in  that  decision.  It  is 
believed  too,  that  one  of  the  members  of  this  court  who  con- 
curred in  that  decision,  was  a  distinguished  member  of  the  le- 
gislature, if  not  one  of  the  revisers,  at  the  time  the  provision 
of  the  revised  statutes  under  which  the  question  arose  was 
adopted,  and  that  he  took  part  in  its  adoption.  If,  then,  any  thing 
is  to  be  inferred  from  legislative  action  or  inaction,  it  can  hardly 
be  in  favor  of  the  supreme  court  rule 

But  other  objections  have  been  urged  against  the  correctness 
of  the  decision  in  Smith  Sf  Hoe  v.  Jlckw.  One,  that  the  mort- 
gage was  not  filed  in  due  time,  when,  in  fact,  it  is  stated  in  the 
case  to  have  been  regularly  filed,  and  no  question  was  raised  in 
relation  to  it  on.  the  trial  or  in  argument.  Another  objection 
not  raised  on  the  trial  or  in  argument  was,  that  the  mortgagor 
had  an  equitable  or  redemptionary  interest,  which  the  sheriff  had 
a  right  to  sell.  But,  from  the  case,  it  would  seem  that  he 

O  I  t 


ALBANY,  DECEMBER,  1842.  293 


Hanford  c.  Anchor. 


levied  on  the  whole  interest  in  the  property  j  and  besides,  the 
learned  dissenting  justice  in  Butler  v.  Van  Wyck,  raised  an  ob- 
jection inconsistent  with  the  last,  viz.  that  the  mortgage  was  due 
and  the  title  of  the  mortgagor  forfeited,  and  urged  as  a  feature 
of  fraud,  that  the  mortgagor  was  allowed  to  remain  in  pos- 
session nine  months  after  the  title  had  become  absolute  in  the 
mortgagee.  This  was  a  circumstance  proper,  perhaps,  for  the 
consideration  of  the  jury,  and  was,  with  the  explanation  in 
that  case,  submitted  to  the  jury  j  but  the  supreme  court  rule 
would  exclude  it  from  all  consideration.  It  is  also  said  that 
the  use  of  the  property  while  so  remaining  in  the  hands  of  the 
mortgagor  must  have  been  worth  several  hundred  dollars  to 
him.  Was  that  not  better  than  to  have  delivered  it  to  the  mort- 
gagee— who  could  not  use  it  at  all — to  remain  a  dead  pledge,  of 
no  benefit  to  any  one  1 

Cases  are  cited  to  show  that  this  court  and  other  courts 
sometimes  overrule  their  own  decisions,  and  it  seems  therefore 
to  be  inferred,  that  the  supreme  court  may  also  overrule  or  dis- 
regard the  decisions  of  this  court.  If  such  is  a  proper  infer- 
ence, with  how  much  more  propriety  may  it  be  inferred  that 
this  court,  created  for  the  purpose  of  reviewing  decisions  of  the 
supreme  court,  may  overrule  the  erroneous  decisions  of  that  court. 

To  insist  that  the  decisions  of  a  court  whose  judgments  are 
the  subject  of  review  by  another  tribunal,  which  decisions,  not 
having  been  wholly  acquiesced  in,  have  been  overruled  by  the 
reviewing  tribunal,  and  upon  a  question  arising  under  a  statute 
of  not  long  standing,  are  still  to  be  held  as  authority  paramount 
to  the  decisions  of  the  reviewing  tribunal,  evinces  how  difficult 
it  is,  even  for  those  distinguished  for  their  legal  attainments, 
acuteness  of  intellect  and  the  purity  of  their  intentions,  to  free 
themselves  from  the  influence  of  early  opinions.  And  without 
intending  any  reflection  upon  the  profession  to  which  I  belong, 
it  may  perhaps  be  said  to  evince  the  wisdom  of  the  framers  of 
our  constitution,  in  permitting  to  be  brought  into  the  court  of 
last  resort,  the  plain  good  sense  and  unbiassed  sound  judgment 


294  CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  ».  Artcher. 


of  the  laity  to  mingle  with  the  talent  and  legal  erudition  of  the 
profession,  who  nevertheless  may  be  liable  to  bring  with  them 
to  the  bench  the  errors  of  prejudged  opinions  formed  at  the 
bar. 

If  the  decisions  of  this  court  made  upon  argument  and  due 
deliberation,  under  circumstances  where  there  can  be  no  doubt 
as  to  the  point  decided,  are  not  to  be  held  as  authority,  conclu- 
sive in  tribunals  whose  decisions  are  subject  to  its  review,  the 
result  must  be  a  series  of  perpetual  conflicts  and  a  "  glorious 
uncertainty  of  the  law."  At  all  events,  it  would  not  seem  pre- 
sumptuous for  a  tribunal,  devised  by  the  framers  of  the  consti- 
tution as  the  court  of  last  resort  in  the  state,  constituted  almost 
entirely  of  one  branch  of  the  legislature,  to  claim  for  its  decis- 
ions some  force  of  authority,  when  passing  upon  the  intention 
and  meaning  of  legislative  enactments ;  and  I  am  happy  to 
know,  that  the  majority  of  the  supreme  court,  in  deciding  the 
case  of  Butler  v.  Van  Wyck,  has  recognized  the  decision  of 
this  court  as  authority,  settling  the  law  of  this  much  agitated 
question.  And  it  is  hoped  that  the  learned  justice  who  dissent- 
ed in  that  case,  however  much  he  may  insist  that  the  decisions 
of  this  court  may  be  disregarded,  will  not,  to  use  his  own  lan- 
guage, "throw  off  the  shackles  of  legal  authority"  imposed 
by  the  court  of  which  the  learned  judge  himself  is  a  distin- 
guished member. 

It  has  been  remarked  by  Mr.  Justice  Cowen,  that,  since  the 
decision  in  Smith  $*  Hoe  v.  Acker,  almost  any  excuse  might  be 
shown  why  possession  was  not  changed,  and  that  the  court  could 
have  no  proper  control  over  the  testimony.  I  am  not  aware 
that  any  thing  there  decided  or  said  by  way  of  argument  would 
justify  so  broad  an  inference.  Although  what  is  called  the 
"  prevailing  opinion"  claims  for  the  jury  the  right  to  decide 
upon  the  weight  of  evidence,  it  expressly  yields  to  the  court 
the  right  to  decide  upon  the  relevancy  of  the  testimony  offered ; 
but  it  must  of  course  decide  with  reference  to  the  proper  issue, 
that  is,  with  reference  to  its  tendency  to  show  good  faith  and 


ALBANY,  DECEMBER,  1842.  295 


Hanford  r.  Artchcr. 


absence  of  fraudulent  intent  in  the  case,  and  not  with  refer- 
ence to  the  mere  question  whether  delivery  was  practicable. 
The  difference  between  this  court  and  the  supreme  court  was 
not  so  much  as  to  what  particular  evidence  should  be  received 
or  rejected,  as  what  the  question  was  to  be  tried,  and  who 
should  try  it.  This  court  says  that  the  case  involves  a  ques- 
tion of  intent,  which,  under  the  statute,  the  jury  are  to  try. 
The  supreme  court  has  insisted  that  the  issue  was,  whether  de- 
livery was  practicable,  and  that  the  court  should  try  it.  It 
now  being  settled  that  the  issue  to  be  tried  is,  in  part  at  least, 
a  question  of  intent,  it  follows  that  proper  and  relevant  testimo- 
ny to  show  the  intent  is  to  be  submitted  to  the  jury.  "  The 
court  decides  whether  there  is  any  evidence ;"  or,  in  other  words, 
whether  the  evidence  offered  is  relevant  to  show  intent,  "  and 
the  jury  decides  whether  it  is  sufficient."  (1  Phil.  Ev.  15.) 
I  do  not  discover  why  there  need  be  more  difficulty  in  trying 
questions  of  intent  in  these  cases  before  a  jury,  than  other  ques- 
tions of  intent  required  to  be  so  tried,  or  a  case  of  fraud  where 
there  has  been  a  delivery.  Indeed,  there  would  seem  to  be 
less  difficulty,  inasmuch  as  in  these  cases,  fraud  is  presumed 
in  the  outset,  and  the  party  objecting  to  the  sale  or  mortgage 
is  relieved  from  the  burden  and  difficulty  of  proving  it.  Fraud 
is  presumed  ;  that  is,  if  possession  was  not  changed,  it  is  pre 
sumed  that  the  sale  was  without  consideration  or  without  an 
adequate  one,  and  also  that  there  was  some  secret  trust  or  an 
intent  to  defraud  creditors.  To  rebut  this  presumption,  the 
statute  imposes  upon  the  party  claiming  under  the  sale  or  mort- 
gage, the  burden  of  proving  not  only  that  it  was  in  good  faith, 
but  that  it  was  without  any  such  intent  to  defraud  creditors. 
Proof  of  a  valuable  consideration  or  an  honest  debt  is  essen- 
tial to  show  good  faith;  and  if  there  be  no  such  proof,  I 
take  it  that  the  requirement  of  the  statute  in  this  respect  is  not 
complied  with,  and  that  the  court  may  order  a  nonsuit,  or,  if  a 
verdict  be  found,  set  it  aside,  just  as  it  would  be  bound  to  do 
in  a  mortgage  case  if  a  copy  had  not  been  filed  nor  notice 
shown.  Such  proof  of  consideration  too  must  go  beyond  a 


296  CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  v.  Artcher. 


mere- paper  acknowledgment  of  it,  that  might  be  binding  be- 
tween the  parties.  But  over  and  above  evidence  of  consideration 
or  an  honest  debt  to  show  good  faith,  the  statute  seems  to  contem- 
plate something  further,  that  is,  proof  of  circumstances  showing 
absence  of  intent  to  defraud  creditors — such  circumstances  as 
would  show  that  the  transaction  was  in  the  ordinary  way  of  fair 
dealing  and  with  reasonable  publicity  under  the  circumstances  j 
if  a  commercial  assignment,  that  notice  was  published,  or  given 
to  the  creditors;  in  a  mortgage  case,  that  a  copy  was  filed,  or 
notice  brought  home  to  the  creditor — or  such  other  relevant 
circumstances  as  the  case  may  reasonably  admit  of,  to  satisfy 
the  jury  that  the  transaction  was  without  any  intent  to  defraud 
creditors. 

The  admissibiiity  of  proof  of  circumstances  showing  that  the 
party,  leaving  possession  unchanged,  was  actuated  by  motives 
of  humanity  or  friendship  arising  from  family  connexions  or 
other  laudable  motive  of  the  kind,  is  a  subject  that  has  been  dis- 
cussed. So  far  as  such  circumstances  go  to  show  absence  of 
fraudulent  intent,  I  do  not  see  why  they  are  not  admissible. 
If  it  appear  simply  that  the  parties  are  family  connexions  or 
confidential  friends,  so  far  as  my  observation  has  extended,  it 
has  been  considered  by  juries,  no  less  than  by  judges,  as  strength- 
ening the  presumption  of  fraud,  inasmuch  as  the  transaction  is 
between  persons  with  whom  a  secret  trust  is  likely  to  exist. 
But  if  facts  or  circumstances  be  proven,  showing  that  there 
was  some  necessity,  reasonable  fitness  or  propriety  for  leav- 
ing possession  unchanged  in  order  to  carry  out  some  pur- 
pose of  humanity — a  laudable  desire  to  contribute  to  the  comfort- 
able support  of  a  near  relative  or  friend,  or  to  aid  him  in  a  law- 
ful business,  or  other  laudable  object  consistent  with  honest 
intent — the  presumption  of  a  secret  trust  or  intent  to  defraud 
would  probably  be  overcome  in  the  minds  of  the  jury.  Fraud 
may  be  proved  by  circumstantial  evidence.  (Waterbury  v. 
Sturtevant,  18  Wend.  353.)  Why  then,  when  presumed,  may 
it  not  be  rebutted  by  circumstantial  evidence  1 

In  connection  with  testimony  of  good  faith,  no  doubt  reasons 


ALBANY,  DECEMBER,  1842.  297 


Hanford  t>.  Artcher. 


may  properly  be  shown  why  possession  was  not  changed  ;  but 
it  was  no  where  contended  in  deciding  Smith  tf  Hoe  v.  Acker^ 
as  was  supposed  on  the  argument  of  the  present  case,  that  such 
reasons  were  necessary,  if  a  case  of  good  faith  and  absence  of 
fraudulent  intent  was  otherwise  made  out.  In  a  case  where  it 
should  appear  that  the  property  might  have  been  delivered, 
and  no  reasons  of  convenience  or  advantage,  nor  circumstances 
showing  the  party  to  have  been  actuated  by  motives  of  humani- 
ty or  other  laudable  motive  consistent  with  honest  intent,  are 
shown  why  the  possession  was  not  changed,  it  would  no  doubt 
require  a  very  clear  case  of  good  faith  in  all  other  respects, 
to  satisfy  the  jury  that  all  was  honest  and  fair. 

A  question  was  raised  on  the  argument  as  to  the  meaning  of  the 
word  "  actual"  contained  in  the  statute  on  this  subject.  I  think 
it  was  intended  to  have  a  literal  meaning  ;  otherwise  it  is  sur- 
plusage. If  a  constructive  or  mere  legal  delivery ,  without  a 
literal  actual  one,  may  be  deemed  an  actual  delivery,  the  ob- 
ject of  the  statute  to  change  the  onus  probandi  and  compel  the 
party  to  show  good  faith  is  easily  defeated.  A  mere  paper 
transfer,  valid  on  its  face,  may  be  shown,  accompanied  by  a 
formal  or  mere  legal  delivery,  while  the  vendor  is  left  in  the  ac- 
tual possession  or  control  as  clerk  ;  and  then,  if  this  legal  deliv- 
is  to  be  deemed  an  actual  one  within  the  meaning  of  the  statute, 
no  presumption  of  fraud  arises,  and  itwould  not  be  necessary 
for  the  party  claiming  under  the  sale,  to  show  even  a  consider- 
ation or  any  other  evidence  of  good  faith.  His  paper  title,  with 
this  kind  of  actual  delivery,  would  be  sufficient ;  that  is,  a  sale 
binding  on  the  parties  to  it  would  be  obligatory  upon  creditors, 
and  the  object  of  the  statute  by  raising  a  presumption  of  fraud 
to  compel  the  party  to  show  good  faith,  would  be  defeated. 

For  these  reasons  I  am  of  opinion  that  the  circuit  judge  cor- 
rectly refused  to  charge  as  requested  under  the  second  and  third 
instructions.  So  long  as  Norton  was  allowed  to  be  in  possess- 
ion or  control  of  the  goods,  although  in  good  faith  as  clerk, 
there  was  no  actual  change  of  possession  so  as  to  relieve  the 
plaintiff  from  proving  good  faith  in  all  other  respects.  In 

VOL.  IV.  38 


298      CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  r.  Artcher. 


showing  good  faith  generally,  it  was  no  doubt  proper  to  prove 
that  Norton  was  employed  in  good  faith  as  clerk.  The  judge 
might  properly  have  charged  the  jury,  that  if  they  found  that 
Norton  was  employed  as  clerk,  in  good  faith,  that  would  not 
render  the  sale  void,  provided  they  found  the  sale  to  be  in  good 
faith  in  all  other  respects.  Probably,  in  showing  that  Norton 
was  employed  in  good  faith,  it  would  appear  that  the  transac- 
tion was  in  good  faith  in  other  respects ;  but  such  might  not 
be  the  case.  The  plaintiff  might  have  shown  a  mere  paper  sale 
and  that  Norton  was  employed  in  good  faith  as  clerk,  and  yet 
not  be  able  to  show  any  consideration,  indebtedness  or  publicity. 
As  to  the  meaning  of  the  word  "  actual,"  as  used  in  the  statute, 
see  also  Camp  v.  Camp,  (2  fli7/,628.)  I  am  also  of  opinion  that 
the  judge  correctly  overruled  the  question  put  to  the  witness 
Russell  as  to  his  intentions. 

I  think,  however,  that  the  judge  erred  in  his  charge  to 
the  jury.  He  no  doubt  intended  to  put  the  cause,  as  far 
as  the  case  would  admit,  upon  the  grounds  of  the  supreme 
court  decisions  which  have  since  been  overruled  by  this  court. 
Even  in  submitting  the  case  to  the  jury,  he  evidently  did  it 
under  the  impression  that  a  constructive  or  mere  legal  change 
of  possession,  of  which  there  was  some  proof,  might,  if  found 
by  the  jury,  be  taken  as  an  actual  change.  If  there  had 
been  no  evidence  of  such  constructive  change  of  possession, 
the  judge  would,  without  doubt,  have  withheld  the  case  from 
the  jury  and  have  nonsuited  the  plaintiff  under  the  supreme 
court  rule ;  but  there  being  some  evidence  of  such  delive- 
ry, he  let  the  cause  go  to  the  jury,  but  limited  their  consid- 
eration, in  case  they  found  there  was  no  such  delivery,  to  the 
mere  enquiry  whether  there  was  any  good  reason  for  it.  He 
did  not  even  instruct  them  that  it  was  necessary  to  enquire 
whether  there  was  any  consideration  or  indebtedness.  He  prob- 
ably had  not  learned  that  the  supreme  court  rule  required 
proof  of  consideration  ;  and,  although  it  is  complained  that  the 
rule  of  the  supreme  court  has  been  misunderstood  in  that  re- 
spect, yet  I  think  it  may  well  be  inferred  from  its  decisions 
and  opinions  that  all  that  would  be  required,  to  take  a  case  out 


ALBANY,  DECEMBER,  1842. 


Hanford  r.  Artober. 


of  the  statute,  was  proof  that  delivery  was  impracticable. 
':  Nothing  can  take  a  case  out  of  the  operation  of  the  statute, 
unless  the  attempted  explanation  relate  to  the  possession  of  tk* 
property."  "  There  must  in  all  cases,  where  practicable,  be  a 
change  of  possession"  (20  Wendell,  521.)  "  The  only  question 
of  fact  here,  is  about  the  possession."  (19  Wcnd.4Al.)  At 
all  events,  in  the  present  case,  the  circuit  judge,  whose  decision 
is  approved  by  the  supreme  court,  seemed  so  to  understand 
the  rule,  and  in  his  charge,  without  a  word  about  proof  of  con- 
sideration, he  twice  distinctly  told  the  jury  that  if  they  found 
any  good  reason  lor  the  possession  not  being  changed,  their 
verdict  must  be  for  the  plain  tiff,  otherwise  it  would  be  for  the 
defendant. 

Although  I  think  the  verdict  wrong,  yet  with  the  bona 
fides  of  the  case  we  hare  nothing  to  do.  They  are  for  the 
jury  to  find  whenever  they  shall  have  an  opportunity  to  do 
so  upon  a  full  consideration  of  the  case.  I  think  the  judge 
intended  to  restrict  them  in  their  consideration  of  the  case  to 
the  mere  reasons  for  non-delivery  of  possession,  or  at  least  that 
the  jury  might  reasonably  have  inferred  so  from  the  charge, 
and  probably  so  understood  it.  I  also  think  that  the  charge  in 
this  respect,  in  connection  with  the  refusal  to  alter  it  under  the 
first  instruction,  was  sufficiently  excepted  to,  and  that  the  judg- 
ment of  the  supreme  court  should  be  reversed. 

BRADISH,  President.  This  case  involtes  the  interpretation 
of  the  statute  in  regard  fo  "fraudulent  conveyances,  and  conr 
tracts  relative  to  real  and  personal  property."  Few  subjects  in 
the  law  have  been  more  variously  considered,  or  have  received 
a  greater  diversity  of  construction  and  application,  by  courts 
and  judges,  than  this.  It  should,  therefore,  perhaps  be  less  a 
matter  of  surprise,  than  it  certainly  is  of  deep  and  just  regret, 
that  this  subject  has,  for  some  years  past,  divided  the  opinions 
of  this,  and  the  supreme  court  of  the  state.  This  difference  be- 
tween the  courts,  however,  has  unfortunately  of  late  assumed 
the  character,  to  say  the  least,  of  an  animated  conflict  of  opin- 
ion ;  and  has  been  adhered  to  with  a  pertinacity,  which  is  not 


300       CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  v.  Artcher. 

merely  matter  of  regret,  but  which,  as  seems  to  rne,*is  entirely 
inconsistent  with  the  theory ',  as  it  is  unfriendly  to  the  harmoni- 
ous and  salutary  action  of  our  judiciary  system.  It  is  equal- 
ly unfavorable  to  the  final  and  satisfactory  settlement  of 
the  law  upon  an  important  and  interesting  subject.  And 
yet,  in  principle,  the  line  which  thus  unfortunately  divides 
the  opinions  of  the  two  courts,  seems  to  me  to  be  a  very 
narrow  one.  The  statute  provides  that,  "  Every  sale  made  by 
a  vendor  of  goods  and  chattels  in  his  possession,  or  under  his 
control,  and  every  assignment  of  goods  and  chattels  by  way  of 
mortgage  or  security,  or  upon  any  condition  whatever,  unless 
the  same  be  accompanied  by  an  immediate  delivery,  and  be  fol- 
lowed by  an  actual  and  continued  change  of  possession  of  the 
things  sold,  mortgaged,  or  assigned,  shall  be  presumed  to  be 
fraudulent  and  void,  as  against  the  creditors  of  the  vendor,  or 
the  creditors  of  the  person  making  such  assignment,  or  subse- 
quent purchasers  in  good  faith  j  and  shall  be  conclusive  evi- 
dence of  fraud,  unless  it  shall  be  made  to  appear,  on  the  part 
of  the  persons  claiming  under  such  sale  or  assignment,  that  the 
same  was  made  in  good  faith,  and  without  any  intent  to  de 
fraud  &c."  (2  R.  S.  136,  §  5.)  The  4th  section  of  the  next 
title  further  provides  that, "  The  question  of  fraudulent  intent, 
in  all  cases  arising  under  the  provisions  of  this  chapter,  shall  be 
deemed  a  question  of/ac£,  and  not  of  law." 

The  doctrine  of  the  supreme  court,  as  I  understand  it,  is  that, 
in  the  case  contemplated  by  the  statute,  proof  of  good  faith 
and  of  the  absence  of  an  intent  to  defraud,  merely  removes  the 
conclusiveness  of  the  evidence  of  fraud,  leaving  it  still  incumbent 
on  those  claiming  under  the  sale  or  assignment  to  account  satis- 
factorily to  the  court  for  the  non-delivery  of  possession  ;  and  thus 
rebut  the  presumption  of  fraud  which  the  statute  raises  from 
that  fact.  That  this  can  only  be  done  by  showing  that  delivery 
of"  possession  was  impracticable.  This  latter  proof,  indeed,  is 
held  to  be  an  indispensable  preliminary  requisite  to  the  sub- 
mission of  the  question  of  good  faith  to  a  jury. 

This  court,  on  the  contrary,  holds  that  the  evidence  which 


ALBANY,  DECEMBER,  1842.  391 


Hanford  v.  Artcher. 


would  be  sufficient  to  show  good  faith  and  an  absence  of  intent 
to  defraud,  would  also  conclusively  rebut  the  presumption  of 
fraud  which  the  statute  raises  from  the  non-delivery  of  pos- 
session ;  and  that  no  additional  testimony,  therefore,  is  neces- 
sary to  account  for  such  non-delivery  of  possession  ;  indeed, 
that  the  former  cannot  be  fully  shown,  without  its  satisfactorily 
accounting  for  the  latter. 

•  It  seems  to  me  that  the  doctrine  of  this  court  is  entirely  sound 
in  principle,  and  is  in  strict  conformity  with  the  terms  and  the 
intent  of  the  statute ;  while  that  of  the  supreme  court  appears  to 
me  erroneous  in  both  these  respects.  The  latter  would  seem  to 
proceed  upon  the  ground,  sometimes  indeed  asserted  by  judges, 
that  the  vendee  or  assignee  of  chattels  leaving  them  in  the  pos- 
session of  the  vendor  or  assignor,  is  in  itself  fraud.  This  ap- 
pears to  me  to  violate  a  vital  principle  of  property.  A  full 
and  free  power  of  disposal  of  chattels  is  an  essential  and  inhe- 
rent incident  of  ownership  ;  and  the  vendee  or  assignee  of  such 
chattels  has  the  same  right  to  leave  them  in  the  possession  of 
the  vendor  or  assignor,  that  he  would  have  to  take  them  into 
his  own,  or  place  them  in  the  possession  of  a  third  person.  If, 
however,  the  vendor  be  suffered  to  retain  possession,  the  stat- 
ute, from  motives  of  public  policy,  declares  that  the  sale  or  as- 
signment so  unaccompanied  by  an  immediate  delivery,  and  not 
followed  by  an  actual  and  continued  change  of  possession  of 
the  things  sold  or  assigned,  shall  be  presumed  to  be  fraudulent 
and  void  as  against  creditors  and  subsequent  purchasers ;  and 
shall  be  conclusive  evidence  of  fraud,  unless  it  shall  be  made 
to  appear  that  the  same  was  made  in  good  faith,  and  without 
any  intent  to  defraud.  Now  what  the  statute  does,  in  this  case, 
is  to  raise  a  presumption  of  fraud,  which  becomes  conclusive, 
unless  good  faith  and  absence  of  intent  to  defraud  be  made  to 
appear.  But  if  the  sale  or  assignment  be  shown  to  have  been 
made  in  good  faith,  and  without  any  intent  to  defraud,  the  pre- 
sumption of  fraud  raised  by  the  statute  is  fully  rebutted.  There 
can  be  no  presumption  of  fraud  in  a  transaction  which  has  been 
proved  to  be  icithout  fraud.  To  call  upon  a  party,  therefore. 


302  CASES  IN  THE  COURT  OF  ERRORS. 

•     Hanford  v.  Artcher. 

who  had  already  proved  the  good  faith  and  absence  of  intent 
to  defraud  of  a  sale  or  assignment  of  chattels,  to  produce  fur- 
ther testimony  to  remove  the  mere  statutory  presumption  of 
fraud,  would  seem  to  be  worse  than  a  work  of  supererogation  : 
it  would  be  to  suppose  the  possible  existence  of  the  shadow,  af- 
ter the  substance  itself  had  ceased  to  exist. 
• 

1.  The  doctrine  of  this  court  is  in  conformity  with  the  terms 
of  the  statute.  Whatever  may  have  been  previously  the  uncer- 
tainty of  the  law  upon  this  subject,  the  language  of  this  stat- 
ute is  clear,  explicit  and  unequivocal.  It  would  seem  to 
be  hardly  susceptible  of  two  interpretations.  A  legislative  en- 
actment, both  in  its  terms  and  its  provisions,  could  scarcely  be 
more  clear  and  unambiguous  than  this ;  or  more  perfectly  in 
harmony  with  the  interpretation  it  has  received  in  the  doctrine 
held  by  this  court.  It  declares  explicitly  what  shall  raise  the 
presumption  of  fraud,  and  in  what  case  this  presumption  shall 
become  conclusive  evidence  of  fraud.  With  equal  explicitness 
does  it  declare  what  shall  remove  or  avoid  the  conclusiveness 
of  this  evidence,  and  thus  rebut  the  presumption  of  fraud  raised 
by  the  statute.  It  very  wisely,  as  I  think,  has  not  undertaken  to 
define  precisely  what  evidence  shall  be  sufficient  to  prove  good 
faith  and  absence  of  intent  to  defraud.  This  must  necessarily 
vary  with  the  ever-varying  circumstances  of  each  individual  case. 
The  statute,  therefore,  has  left  this,  like  every  other  fact  or 
question  of  intent,  to  be  determined  by  the  jury,  under  the  di- 
rection of  the  court,  from  the  legal,  competent,  and  relevant 
testimony  presented  to  them  according  to  the  ordinary  and  es- 
tablished rules  of  evidence.  To  this  end  it  has  made  such 
fraudulent  intent  a  question  of  fact)  and  not  of  law. 

From  the  declaration  of  the  statute  that  the  facts  enumerated 
therein  shall  be  conclusive  evidence  of  fraud,  unless  it  shall  be 
made  to  appear  that  the  sale  or  assignment  was.  made  in  good 
faith,  and  without  any  intent  to  defraud,  the  legal  inference,  as 
well  as  that  of  common  sense,  is,  I  think,  irresistible,  that  if  it 
be  thus  made  to  appear,  those  facts  shall  not  be  conclusive  evi- 
dence of  fraud  ;  and  that  the  presumption  of  fraud  raised 


ALBANY,  DECEMBER,  1842.  303 


t.  Artcher. 


therefrom  shall  be  thus  fully  rebutted.  The  statute  does  not 
go  on  to  provide  that,  in  addition  to  proof  of  good  faith  and 
absence  of  intent  to  defraud,  the  party  claiming  under  such 
sale  or  assignment  shall  also  be  held  to  show,  by  reasons  to  -be 
approved  by  the  court,  why  there  had  not  been  an  immediate 
delivery,  and  an  actual  and  continued  change  of  possession  : 
much  less  does  the  statute  make  such  proof  an  indispensable 
preliminary  requisite  to  the  admission  of  proof  of  good  faith 
and  the  absence  of  an  intent  to  defraud  j  nor  does  it  require 
that  "  the  question  of  bona  fides  should  be  withholden  from  the 
jury,  where  the  parties  have  refused  to  change  the  possession, 
if  change  were  within  their  power."  This  is  the  law  of  the 
courts,  not  of  the  statute.  In  the  opinion  of  the  supreme  court 
in  the  case  of  White  v.  Cole  ff  Thurman,  (24  Wend.  116,)  the 
learned  judge  who  prepared  that  opinion,  presents  the  follow- 
ing interrogatory  and  answer  :  "  Does  the  statute,  (2  R.  S. 
72,  2d  ed.j  §  4,)  when  it  declares  fraudulent  intent  to  be  a 
question  of  fact,  leave  it  to  be  tried,  like  other  cases  of  intent, 
on  facts  pertinent  in  the  opinion  of  the  judge,  according  to  the 
general  rules  of  evidence  1  We  have  heretofore  given  one 
uniform  answer  to  this  enquiry.  We  have  withholden  the 
question  of  bonajides  from  the  jury,  where  the  parties  have  re- 
fused to  change  the  possession,  if  change  were  within  theu 
power.  We  have  considered  delivery  as  the  form  put  forward 
by  the  statute  to  test  the  honesty  of  the  transaction."  It  has 
also  been  said  by  another  judge  of  the  same  court,  (Butler  v. 
Van  Wyckj  1  Hill,  456,)  "  When  that  (change  of  possession)  is 
wanting,  the  statute  is  so  far  from  allowing  that  there  .can  be 
good  faith  towar<^  creditors  and  purchasers,  that  it  declares 
the  transaction,  as  to  them,  fraudulent  and  void  ;"  and  again, 
"  without  altering  the  language  of  the  statute,  there  is,  I  think, 
no  way  in  which  this  presumption  can  be  got  rid  of,  so  long 
as  the  fact  out  of  which  it  springs  —  unchanged  possession  —  con- 
tinues to  exist."  "  Nothing  can  take  a  case  out  of  the  opera- 
tion of  the  statute,  unless  the  attempted  explanation  relate  to 
the  possession  of  the  property." 


304  CASES  IN  THE  COURT  OF  ERRORS. 

,     Hanford  v.  Artcher. 


The  doctrine  thus  laid  down  by  two  of  the  judges  of  the  su- 
preme court,  seems  to  me  artificial,  far  too  restricted,  and  in- 
consistent with  both  the  terms  and  intent  of  the  statute.  In 
the  case  contemplated  dy  the  statute,  the  statute  itself  pre- 
scribes, as  the  only  requisite,  proof  of  good  faith  and  absence 
of  intent  to  defraud.  The  burden  of  such  proof  is  very  prop- 
erly thrown  upon  those  claiming  under  the  sale  or  assignment. 
In  weighing  the  evidence  offered  of  such  good  faith  and  absence 
of  intent  to  defraud,  the  jury  may  very  properly  consider  any 
good  reasons  which  may  be  presented  to  them  for  the  non-de 
livery  of  immediate  possession.  Such  reasons  may,  and  gen 
erally  will,  form  a  part  of  the  evidence  which  goes  to  show 
good  faith  and  the  absence  of  an  intent  to  defraud  ;  but  it  is, 
by  no  means,  the  only  evidence  for  that  purpose.  Nor  can  I 
admit,  as  seems  to  be  insisted  on  in  the  doctrine  held  by  the 
supreme  court,  that  such  reasons  are  an  indispensable  prelimi- 
•nary  requisite  to  the  admission  of  other  testimony  ;  or  that, 
without  such  reasons,  all  other  testimony,  however  satisfacto- 
ry in  itself  it  may  be  in  other  respects,  is  still  insufficient  to 
prove  what  the  statute  requires,  and  to  rebut  the  presumption 
of  fraud  which  it  raises.  Much  less  can  I  admit  the  soundness 
of  a  doctrine  that  would  withhold  from  the  jury  a  jurisdiction 
expressly  given  to  it  by  the  statute,  and  which  allows  the 
court  to  usurp  the  prerogative  of  deciding  not  only  upon  the 
competency  and  relevancy  of  testimony,  but  also  upon  its 
weight  and  sufficiency,  in  the  very  case  contemplated  by 
the  statute,  and  upon  the  very  question  expressly  declared 
by  that  statute  to  be  a  question  of  fact  and  not  of  taw. 
This  would  be  to  repeal  the  statute,  and  to  substitute  in  its 
place,  law  which,  I  think,  the  legislature  has  neither  enacted 
nor  intended  to  enact.  To  say  too,  that  when  a  change  of 
possession  is  wanting,  the  statute  is  so  far  from  allowing  that 
there  can  be  good  faith  towards  creditors  and  purchasers,  that 
it  declares  the  transaction,  as  to  them,  fraudulent  and  void, 
seems  to  me  to  be  in  the  highest  degree  contradictory  and  ab- 
surd, and  wholly  wanting  in  that  legal  acumen  and  general  logical 


ALBANY,  DECEMBEK,  1842. 


Il&nfurd  r.  Artchcr. 


accuracy  which  usually  so  strongly  characterize  the  mind  from 
which  the  observation  emanated.  When  the  statute  says,  that 
a  sale  or  assignment  of  chattels,  unaccompanied  by  an  imme- 
diate delivery  and  not  followed  by  an  actual  and  continued 
change  of  possession,  shall  be  presumed  to  be  fraudulent  and 
void,  and  conclusive  evidence  of  fraud,  unless  good  faith  and 
the  absence  of  an  intent  to  defraud  be  made  to  appear,  the 
statute,  in  its  very  terms,  necessarily  supposes  the  possible  ex- 
istence of  good  faith,  and  the  absence  of  an  intent  to  defraud, 
notwithstanding  the  want  of  an  immediate  delivery  and  an  ac- 
tual and  continued  change  of  possession  ;  and  it  as  necessarily 
implies  that,  when  such  good  faith  and  absence  of  intent  to  de- 
fraud shall  be  made  to  appear,  the  presumption  and  conclusive 
evidence  of  fraud  which  the  statute  raises  from  the  facts  stated, 
shall  be  fully  rebutted  and  cease  to  exist.  This  seems  to  me 
most  clear  from  the  very  terms  of  the  statute  ;  and  such  is  the 
doctrine  of  this  court.  That  doctrine  is,  therefore,  in  con-, 
formity  with  the  terms  of  the  statute. 

2.  The  doctrine  of  this  court  is  also  in  harmony  with  the  in- 
tent of  the  statute.  To  arrive  at  the  true  intent  and  meaning 
of  this  statute,  it  is  hardly  necessary  to  go  beyond  its  own  phrase- 
ology ;  so  clear,  explicit  and  unambiguous  is  the  language  in 
which  its  provisions  are  expressed.  Yet  that  plain  and  obvi- 
ous intent  is  rendered  still  more  palpable  by  the  history  of  the 
law  previous  to  the  passage  of  this  statute,  and  by  the  circuin 
stances  which  attended  its  enactment. 

Our  statute  of  1830,  (2  R.  S.  136,  %  5,  id.  137,  $  4,)  em- 
braces the  provisions,  somewhat  modified  and  enlarged,  of  the 
statutes  of  50  Edw.  3,  ch.  6,  3  Hen.  7,  ch.  4,  IZEliz.  ch.  5, and 
27  Eliz.  ch.  4.  For  more  than  two  centuries  after  the  passage  of 
the  statutes  of  the  13  and  27  Eliz.,  even  down  to  near  the  mid- 
dle of  the  reign  of  George  the  third,  the  prevailing  doctrine  of 
the  courts  of  Westminster  Hall,  with  few  apparent  exceptions, 
was,  that  those  statutes,  in  the  cases  contemplated  by  them,  and 
upon  the  facts  therein  stated,  raised  only  a  prima  facie  pre- 
sumption and  not  conclusive  evidence  of  fraud ;  and  that  this 

VOL.  IV.  39 


306  CAsiiij  i;;  T;II:  COURT  OF  ERRORS. 


llanford  c.  Artcber. 


of  course  might  be  rebutted  by  testimony  :  that  the  question 
of  fraud  was  therefore  one  of  fact  for  the-'Jury,  and  not  an  in- 
ference of  law  to  be  drawn  by  the  courts. 

It  is  true  that,  during  this  period,  efforts  were  occasionally 
made  by  individual  judges  to  introduce  the  harsher  rule,  and 
consider  voluntary  conveyances  and  sales  of  chattels,  unac- 
companied by  delivery  of  possession,  as  in  all  cases  conclusive 
evidence  of  fraud,  not  to  be  explained  or  rebutted ;  but  that 
the  fraud  was  a  necessary  inference  of  law  to  be  drawn  by  the 
court  from  the  single  fact  alone  that  the  conveyance  was  vol- 
untary, or  the  sale  unaccompanied  by  a  delivery  of  possession. 
The  acknowledged  exceptions  to  this  severe  rule  soon  became 
so  numerous  as  to  destroy  the  rule  itself,  when  the  courts  again 
fell  back  upon  the  milder  and  more  reasonable  rule  of  prima 
facie  presumption,  and  the  consequent  jurisdiction  of  the  jury. 
Some  indeed  went  so  far  as  to  consider  voluntary  conveyances, 
and  sales  and  assignments  of  chattels,  unaccompanied  by  a 
change  of  possession,  as  fraudulent  per  se.  Others  attempted  to 
draw  a  distinction  between  absolute  bills  of  sale  and  condition- 
al assignments  by  way  of  mortgage,  insisting  that,  in  the 
former  case,  non-delivery  of  possession  was  conclusive  evi- 
dence of  fraud  :  while,  in  the  latter,  it  is  only  prima  facie  evi- 
dence of  fraud,  during  the  period  within  which  the  condition 
was  to  be  performed,  on  the  ground  that  for  this  period  the 
continued  possession  in  the  mortgagor  was  consistent  with 
the  deed.  But  that,  on  the  expiration  of  that  period,  the  case 
of  a  conditional  assignment  or  mortgage  was  subject  to  the 
same  rule  as  an  absolute  bill  of  sale  ;  on  the  ground  that  the 
continued  possession  of  the  conditional  assignor,  or  mortgagor, 
had  then  become  inconsistent  with  the  deed. (a) 

But  these  ultra  doctrines  and  artificial  distinctions  had  only 
a  transient  existence.  They  soon  disappeared,  and  gave  place 
to  the  much  more  rational  and  sound  doctrine  that  puts  all 


(d)  See  Bissett  v.  Hopkins,  (3  Cowen,  166,}  and  t,h<?  cc^cs  there  citnd  by  Talcott 
and  Hopkins,  arguendo. 


ALBANY,  DECEMBER,  1842.  397 


Hanford  t>.  Artchcr. 


these  cases  on  the  same  uniform  ground  of  intent ;  as  in  the 
cases  of  Cadogan  v.  Kennett,  (Cowp.  432,)  and  Doe  v.  Rout- 
ledge,  (id.  705.)  In  the  former,  (p.  434,)  Lord  Mansfield  said, 
"  the  statute  does  not  militate  against  any  transaction  bonajlde, 
and  where  there  is  no  imagination  of  fraud.  And  so  is  the  com- 
mon law."  And  further :  "The  statute  27-E/tz.  c.  4,  does  not 
go  to  voluntary  conveyances  merely  as  being  voluntary,  but 
to  such  as  are  fraudulent."  This  was  the  earlier,  and,  as 
seems  to  me,  the  true  doctrine.  So  Lord  Ellenborough,  in  Doe 
v.  Manning  and  another,  (9  East,  59,  63,)  where  he  collected 
and  reviewed  the  cases  under  the  13th  and  27£A  Eliz.,  ob- 
served that,  in  the  cases  "  which  arose  nearest  the  time  of  pass- 
ing the  statute,  (27  Eliz.)  the  judges  seem  to  have  held  that  a 
voluntary  settlement  was  only  prima  facie  fraudulent  against  a 
purchaser ;"  and  that,  by  a  reference  to  the  cases,  it  would  ap- 
pear that  it  was  matter  of  evidence  to  the  jury,  on  which  they 
passed,  whether  a  voluntary  conveyance,  as  such,  was  fraudu- 
lent. The  same  principle  is  applicable  to  both  statutes.  In 
favor  of  the  principle  may  be  arrayed,  among  others,  the  names 
of  Lord  Hale,  Lord  Rolle,  Lord  Holt,  Ch.  Baron  Gilbert,  Ch. 
Justice  Eyre,  Lord  Mansfield,  Sir  William  Blackstone,  Lord 
Eldon,  Lord  Ellenborough,  and  Lord  Tenterden ;  and  against 
it  Lord  Hardwicke,  Ch.  Justice  DeGrey,  and  Justice  Buller. 
The  latter,  in  the  case  of  Edwards  v.  Harben,  (2  T.  R.  587,) 
did,  more  strongly  perhaps  than  any  of  his  predecessors  or  suc- 
cessors, lay  down  the  strict  general  rule,  that  possession  must 
accompany  and  follow  the  deed  :  that,  therefore,  where  the 
conveyance  is  absolute,  the  possession  must  be  delivered  im- 
mediately, but  where  it  is  conditional,  it  will  not  be  rendered 
void  by  the  vendor  continuing  in  possession  till  the  condition 
be  performed  ;  thus  recognizing  the  distinction  before  at- 
tempted to  be  drawn  between  absolute  and  conditional  con- 
veyances. The  doctrine  of  this  case,  however,  has  neither 
been  always  considered  as  sound  law,  nor  uniformly  followed 
as  such,  even  in  England.  On  the  contrary,  it  has  been  often 
questioned.  In  Steward  v.  Lombe,  (1  Brod.  $  Bi*g.  506,)  de- 


308  CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  v,  Artcher. 


cided  in  1820,  the  doctrine  of  Edwards  v.  Harben  was  very 
strongly  questioned  and  dissented  from  by  Ch.  J.  Dallas  and 
Justice  Parke  ;  and  still  more  so  in  later  decisions.  Even 
Justice  Buller  himself,  in  Haselinton  v.  Gill,  (3  T.  R.  620, 
note,)  says  :  "  It  has  been  frequently  determined  that  posses- 
sion alone  is  not  evidence  of  fraud ;  the  transaction  must  be 
shown  to  be  fraudulent  from  other  circumstances."  This  case 
was  tried  at  the  Guildhall  sittings  after  Easter  term  1784, 
before  Justice  Buller,  was  carried  up  to  the  king's  bench,  and  de- 
cided by  Lord  Mansfield  Ch.  J.,  Ashhurst,  Grose  and  Buller, 
Justices.  Ch.  J.  Savage  understood  the  case  of  Edwards  v. 
Harben  as  differing  from  Twyne's  case  only  in  that  it  made  non- 
delivery of  possession,  unexplained,  sufficient,  per  se,to  charac- 
terize the  transaction  as  fraudulent ;  whereas  in  Twyne's  case, 
that  was  combined  with  other  indicia  of  fraud.  He  states  the 
general  rule  to  be,  that  c<  possession  by  the  vendor  or  mort- 
gagor, after  forfeiture,  is  prima  facie  evidence  of  fraud;  but 
that  such  possession  may  be  explained,  and  if  the  transaction 
be  shown  to  have  been  upon  sufficient  consideration,  and 
bona  fide,  that  is,  without  any  intent  to  delay,  hinder  or  de- 
fraud creditors  or  others,  then  the  conveyance  is  valid,  other- 
wise not."  Continued  possession  in  the  vendor  OT  mortgagor 
"  is  a  badge  of  fraud.  That  is  not  denied  and  never  has  been 
since  Twyne>$  case."  (Hall  v.  Turtle,  8  Wend.  375.)  Chan- 
cellor Kent,  after  a  careful  examination  of  the  cases,  and  a  full 
consideration  of  the  whole  subject,  says  :  "  The  conclusion  from 
the  more  recent  English  cases  would  seem  to  be,  that  though  a 
continuance  in  possession  by  the  vendor  or  mortgagor  be  pri- 
ma facie  a  badge  of  fraud,  if  the  chattels  sold  or  mortgaged  be 
transferable  from  hand  to  hand,  yet  the  presumption  of  fraud 
arising  from  that  circumstance  may  be  rebutted  by  explana- 
tions showing  the  transaction  to  be  fair  and  honest,  and  giving 
a  reasonable  account  of  the  retention  of  the  possession.  The 
question  of  fraud  arising  in  such  cases,  is  not  an  absolute  in- 
ference of  law,  but  one  of  fact  for  the  jury."  (2  Kentfs  Com* 
620,  2d  ed.) 


ALBANY,  DECEMBER,  1842. 


Hanford  ».  Artchcr. 


Such  is  briefly  the  history  and  present  state  of  the  law  upon 
this  subject  in  England.  It  has  been,  if  possible,  still  more 
fluctuating  and  unsettled  in  this  country.  The  supreme  court 
of  the  United  States,  in  the  case  of  Hamilton  v.  Russell,  (1 
Crunch,  309,)  adopted  the  leading  principle  of  the  case  of  Ed- 
wards v.  Harben,  leaving  open,  however,  the  question  between 
absolute  sales  and  conditional  assignments,  and  also  the 
cose  where  a  continuance  of  the  possession  in  the  vendor 
or  assignor  is  consistent  with  the  deed.  This  decision  has  been 
adopted  and  generally  followed  by  the  subordinate  courts  of 
the  United  States,  so  that  it  may  perhaps  be  considered  as  the 
settled  doctrine  of  the  federal  judiciary,  with  some  recent  and 
pretty  strong  exceptions.  Among  these  is  the  opinion  of  Jus- 
tice Thompson  in  the  case  of  Hi.-idc's  Lessee  v.  Longworth,  (11 
Wheatoii)  213.)  The  doctrine  of  Edwards  v.  Harbcn  has  also 
been  adopted  and  followed  in  several  of  the  states,  particularly 
Virginia,  Kentucky,  Pennsylvania  and  Connecticut.  But  the 
contrary  doctrine  has  been  strongly  and  uniformly  held  in  North 
Carolina,  New-Hampshire,  and  Massachusetts,  where  the  sub- 
ject seems  to  have  undergone  r.  full  and  careful  examination. 

In  North  Carolina,  in  Vicks  v.  Keys,  (2  Hayw.  126,)  Falk- 
ncr  v.  Perkins,  (id.  224,)  Trotter  v.  Howard,  (1  Hawks'  Rep. 
320,)  and  in  Smith  &  Stanley  v.  Mel  and  others,  (id.  341,) 
Judges  Taylor,  Johnson  and  Hall,  held,  that  the  not  taking  pos- 
session immediately  of  goods  conveyed  by  a  bill  of  sale,  is  not 
of  itself  fraud,  but  evidence  only  of  fraud,  and  may  be  accounted 
for  by  evidence ;  and  that  that  question  properly  and  of  right 
belongs  to  the  jury. 

In  New-Hampshire,  in  Haven  v.  Low,  (2  JV.  H.  R.  13,) 
Woodbury,  J.  says :  "  As  a  general  principle,  fraud  is  a 
question  of  fact ;  or,  at  the  farthest,  is  a  mixed  question  of  law 
and  fact."  In  conclusion,  he  adds  :  "  Possession  of  property  be- 
ing retained  hy  the  vendor  after  a  sale,  is  not  per  se  a  fraud  j  but, 
in  the  language  of  Lord  Mansfield,  (1  Burr.  484,)  'being  only 
evidence  of  fraud  may  be  explained.'  The  whole  circum- 
stances should  be  submitted  to  the  jury."  In  Cobvrn  v. 
Pickering,  (3  JV.  K.  R.  415,  425,)  Richardson,  Ch.  J.  says: 


310  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  ».  Artcher. 

After  a  most  attentive  and  careful  examination  of  the  books 
on  this  subject,  we  have  not  been  able  to  entertain  a  doubt, 
that  the  true  rule  to  be  deduced  from  all  the  adjudged  cases  is, 
that  when  the  sale  is  absolute,  possession  and  use  of  the  goods  af- 
terwards, by  the  vendor,  is  always,prtmo/acie,  and,  if  unexplain- 
ed, conclusive  evidence  of  a  trust."  "  When  the  question  is, 
was  there  a  secret  trust  *?  it  is  a  question  of  fact.  But  when 
the  fact  of  a  secret  trust  is  admitted,  or  in  any  way  established, 
the  fraud  is  an  inference  of  law  which  a  court  is  bound  to 
pronounce."  (Id.  p.  428.)  "  Twyntfs  case,  in  substance,  con- 
tains the  rule  we  have  laid  down."  (Id.  p.  427.)  Refer- 
ring to  the  case  of  Haven  v.  Low,  he  adds :  "  The  decision 
was  in  perfect  accordance  with  the  rule  we  have  laid  down  ; 
for  when  the  court  say  that  possession  of  the  goods  is  not  con- 
clusive evidence,  all  that  is  intended  is,  that  it  may  be  rebut- 
ted or  explained."  "  We  have  no  hesitation  in  saying,  that 
there  is  no  contradiction  in  the  decisions  on  this  point.  All 
the  cases  are  reconciled  by  the  distinctions  we  have  stated." 
This  case  seems  to  have  been  ably  argued,  and  deliberately 
and  well  considered.  In  Ash  v.  Savage,  (5  JV*.  H.  R.  545, 
547,)  Richardson,  Ch.  J.  says,  that  "  possession  by  the  mort- 
gagor may  in  some  cases  be  evidence  of  fraud,  but  is  never 
fraud  in  law,  or  conclusive  evidence  of  fraud." 

In  Massachusetts,  in  Brooks  v.  Powers,  (15  Mass.  R.  244,) 
the  court  say  :  "  It  has  been  contended  in  this  case,  that  the  pos- 
session of  the  vendor  of  personal  chattels  after  the  sale,  is  con- 
clusive evidence  in  favor  of  creditors  that  the  sale  was  fraudu- 
lent ;  or  rather  that  it  is  itself  a  fraud.  But  we  are  all  of  opin- 
ion that-.,  although  it  is  generally  evidence  of  the  strongest  kinds 
it  is  not  conclusive."  In  Bartlett  v.  Williams,  (1  Pick.  288^ 
295,)  Putnam,  J.  says  :  "  It  is  certainly  a  general  rule,  that  pos- 
session must  accompany  and  follow  the  deed  ;  and  that  the  pos- 
session of  the  vendor  after  the  bill  of  sale,  unexplained,  would 
render  the  conveyance  void  as  against  creditors.  But  such  a 
possession  may  be  explained,  and  be  perfectly  consistent  with 
justice." 


ALBANY,  DECEMBER,  1W2. 


Hanford  t>.  Anchor. 


In  relation  to  our  own  state,  Chancellor  Kent  remarks  :  "  In 
New- York,  the  current  language  of  the  court  originally  was, 
that  the  non-delivery  of  goods  at  the  time  of  the  sale  or  mortgage, 
was  only  prima  facie  evidence  of  fraud,  and  a  circumstance 
which  admitted  of  explanation."  (2  Kent's  Com.  526,  2d  ed.) 
See  Barrow  v.  Paxton,  (5  John.  R.  258,)  where  it  was  held  that 
possession  continuing  in  the  vendor  was  only  prima  facie  evi- 
dence of  fraud,  and  might  be  explained.  See  also  Seals  v.  Guern- 
sey, (8  John.  R.  446,  452,)  where  the  court  say  :  "  The  non-de- 
livery of  the  goods  at  the  time  of  the  sale  is  of  itself  a  circum- 
stance of  fraud,  as  was  stated  in  Twyne's  case  ;  but  it  is  only  pri- 
ma facie  evidence  of  fraud,  and  the  circumstance  may  admit  of 
explanation."  "  The  question  of  fraud  depends  upon  the  motive." 
This  seems  to  me  the  true  doctrine,  especially  under  the  statute 
of  1830.  But  in  Sturtevant  v.  Ballard,  (9  John.  R.  337, 
344,)  Kent,  Ch.  J.  would  seem  to  have  intended  to  establish 
the  stricter  rule,  when  he  declared,  that  "  a  voluntary  sale  of 
chattels  with  an  agreement,  either  in  or  out  of  the  deed,  that 
the  vendor  may  keep  possession  is,  except  in  special  cases,  and 
for  special  reasons,  to  be  shown  to,  and  approved  of  by  the 
court,  fraudulent  and  void  as  against  creditors."  Chief  Justice 
Savage,  however,  does  not  understand  the  decision  in  this  case 
as  having  altered  the  law ;  but  that  the  exception  therein  of 
"  special  cases,  and  for  special  reasons,11  left  the  evidence  of 
fraud  open  for  explanation,  and,  therefore  was  not  conclusive ; 
and  that  the  case,  therefore,  did  not  go  beyond  the  previous  ones 
of  Barrow  v.  Paxton  and  Seals  \.  Guernsey.  It  is  evident, 
however,  I  think,  from  Chancellor  Kent's  language  in  his  com- 
mentaries, that  he  himself  intended,  in  the  decision  of  Sturte- 
vant v.  Ballard,  to  adopt  a  more  strict  rule  than  had  been  pre- 
viously recognized  by  the  courts  of  this  state  j  and  that  he  sup- 
posed the  court  had,  in  its  decision  of  that  case,  accomplished 
such  purpose. 

The  doctrine  of  this  case  was  not  followed  in  Dickinson  v. 
Cook,  (17  John.  R.  332,)  where  Yates,  J.,  who  delivered 
the  opinion  of  the  court,  recognized,  as  a  general  principle  of 


312  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  v.  Artcher. 

law,  that  a  continued  possession  of  goods  by  a  vendor  is  prima 
facie  evidence  of  fraud.  But  Bissell  v.  Hopkins,  (3  Coven, 
166,)  as  Chancellor  Kent  himself  admits  in  his  commentaries, 
entirely  subverted  the  doctrine  of  Sturtevant  v.  Bollard,  and 
declared  that,  in  retaining  possession  after  sale,  there  was  nei- 
ther fraud  in  law,  nor  fraud  in  fact ;  that  there  was  only  prima 
facie  evidence  of  fraud,  which  might  be  explained.  In  Butts 
v.  Swartwood,  (2  Cowen,  431,)  and  Jackson  v.  Mather,  (7 
Cowen,  304,)  continued  possession  was  held  to  be  only  prima 
facie  evidence  of  fraud.  Stutson  v.  Brown,  (7  Cowen,  732,) 
was  a  case  of  actual  fraud.  In  the  case  of  Seward  v.  Jackson, 
(8  Cowen,  406,)  in  this  court,  Senators  Spencer  and  Allen  held 
fraud  to  be  a  question  of  fact  and  not  of  law.  The  former  put 
himself,  among  other  authorities,  on  the  opinion  of  Justice 
Thompson  in  Hinders  Lessee  v.  Longworth,  cited  above.  Sena- 
tor Spencer  (p.  435,)  says  :  "  Strictly  speaking,  there  is  no  such 
thing  as  fraud  in  law ;  fraud  or  no  fraud  is,  and  ever  must  be  a 
fact.  The  evidence  of  it  may  be  so  strong  as  to  be  conclusive  ; 
but  still  it  is  evidence,  and,  as  such,  must  be  submitted  to  a  jury." 
In  Jennings  v.  Carter,  (2  Wend.  446,  449,)  Marcy,  J.,  says  : 
a  It  is  well  settled  that  explanations  may  be  given,  which  will 
effectually  repel  the  presumption  of  fraud  arising  from  con- 
tinuance of  possession  in  the  vendor."  In  Divver  v.  McLaugh- 
lin,  (2  Wend,  596,)  Savage,  Ch.  J.  held,  that  possession 
of  personal  property  by  the  vendor  or  mortgagor  inconsistent 
with  the  deed,  was  prima  facie  evidence  of  fraud,  but  subject  to 
explanation.  In  these  last  two  cases,  the  explanations  offered 
were  insufficient.  The  opinions  of  Senators  Spencer  and  Allen 
in  Seward  v.  Jackson  were  afterwards  followed  by  the  supreme 
court  in  Jackson  v.  Peck,  (4  Wend.  300,)  and  in  Jackson  v. 
Timmerman,  (7  Wend,  436.) 

Such  is  briefly  the  history,  and  such  was  the  fluctuating  and 
unsettled  state  of  the  law  upon  this  subject,  when  the  statute 
in  question  was  passed.  It  cannot  therefore  well  be  perceived, 
how  it  could  with  correctness  be  said  or  implied,  as  it  was  in 
Butler  v.  Van  Wyck,  that  there  had  been  a  "  uniform  current 


ALBANY,  DECEMBER,  1842. 


Hanford  r.  Artcher. 


of  judicial  authority  from  Twyntfs  case,  in  the  reign  of  Eliza- 
beth, down  to,  but  not  including  Smith  If  Hoe  v.  .tfcfcer,  decided 
by  the  court  for  the  correction  of  errors  j"  or,  as  was  said  in  the 
same  case,  with  reference  to  the  principle  in  discussion,  that  it 
was  "  a  question  which  had  passed  through  all  the  courts  of 
the  state  with  a  uniform  result"  On  the  contrary,  the  ever- 
varying  and  often  conflicting  decisions  of  the  courts,  in  regard 
to  the  principle  in  question,  rim  through  all  the  books,  and 
show  the  law  upon  this  subject  to  have  been  at  that  period 
fluctuating  and  unsettled. 

To  reconcile  the  discrepancies,  and,  as  far  as  practicable,  to 
harmonize  the  various  and  conflicting  decisions  of  the  courts, 
by  taking  from  all  whatever  they  had  in  common  OJT  might 
contain  of  sound  doctrine  and  practical  principle,  and  thus 
finally  to  settle  the  law  upon  this  subject,  was  undoubtedly  the 
object  and  intention  of  the  legislature  in  passing  into  express 
enactment  this  portion  of  the  revised  statutes.  This  conclu- 
sion would  naturally  be  drawn  from  the  very  terms  of  the 
statute,  which  are  clear  and  explicit.  But  the  conclusion  is  forti- 
fied by  the  orignal  notes  of  the  revisers,  which  accompanied  this 
portion  of  the  revision  when  it  was  presented  by  them  to  the 
revising  legislature.  This  object,  at  the  time,  was  supposed  to 
have  been  fully  accomplished.  So  it  was  then  and  has  since  been 
viewed  by  some  of  the  best  legal  minds  in  the  state.  Chancel- 
lor Kent,  referring  to  the  previously  fluctuating  and  unsettled 
state  of  the  law  upon  this  subject,  says  :  "  The  New-York  re- 
vised statutes  have  put  this  vexatious  question  at  rest."  "  The 
doctrine  now  established  by  statute,  is  evidently  as  high-toned  as 
any  that  the  courts  of  justice  in  this  country  can,  by  a  per- 
manent practice,  sustain  ;  and  it  contains  this  inherent  and  re- 
deeming energy,  that  the  fact  of  withholding  possession  raises 
the  presumption  of  fraud,  and  the  burden  of  destroyingMhat 
presumption  is  thrown  on  the  vendee  or  mortgagee."  (2  KcnPt 
Com.  529,  note.)  So  in  Hall  v.  Tuttle,  (8  Wend.  375,)  one 
of  the  earliest  cases  that  arose  under  the  revised  statutes,  and 
IV.  40 


314  CASES  IN   Trite  COURT  OF  ERRORS. 

"  Hanford  v.  ./Vrtcher. 

which,  with  the  whole  law  upon  the  subject,  was  very  elaborately 
considered  by  Ch.  J.  Savage,  he  says  :  (p.  379,)  "  If  I  am  right 
in  supposing  that  the  rule  laid  down  in  Sturtevant  v.  Bollard 
amounts  to  no  more  than  that  possession  remaining  in  the  ven- 
dor is  prima  facie  evidence  of  fraud,  then  there  is  no  dis- 
crepancy between  the  cases  in  this  court  ;  they  all  maintain 
the  same  doctrine  ;  and  so  have  the  legislature  pronounced  the 
law  to  be  from  and  after  January  1,  1830.  (2  R.  S.  136,  § 
5.)  This  legislative  enactment  contains  what  I  understand  the 
law  to  have  been  ever  since  the  13th  Eliz.  ch.  5,  and  what 
the  common  law  was  before  that  statute  was  enacted." 

Such  are  the  views  of  two  distinguished  legal  minds,  of  the 
provisions  and  effect  of  the  statute  in  question.  Indeed,  so 
plain  is  the  language,  and  so  palpable  the  objects  of  this  stat- 
ute, that  it  would  seem  to  be  as  impossible  to  mistake  the 
one  as  to  misinterpret  the  other.  And  yet,  as  was  remarked 
by  a  late  distinguished  member  of  this  court,  "  This  legislation 
has  merely  afforded  a  new  and  remarkable  proof  of  the  imper- 
fection of  human  language  and  the  impossibility  of  definitely 
settling  any  great  rule  of  law  for  the  complicated  affairs  of 
human  life,  merely  by  the  general  language  of  a  statute  or  the 
provisions  of  a  code."  It  would  seem  to  me,  however,  that 
the  differences  in  opinion,  and  the  conflicting  interpretations  of 
this  statute,  have  arisen  rather  from  strongly  preconceived  no- 
tions of  what  the  public  interests  and  a  sound  public  policy  re- 
quired it  to  be3  than  from  any  ambiguity  or  uncertainty  either 
in  the  terms  or  the  provisions  of  the  statute  itself.  It  has  been 
an  adherence  to  what,  in  individual  opinion,  the  law  should  be, 
rather  than  a  fair  and  just  interpretation  of  what  the  legislature 
has  actually  made  it.  The  opinion  has  been  entertained  and 
strongly  expressed,  that  the  public  interests  as  well  as  good 
morals,  would  have  been  promoted  by  a  declaration,  fifty  years 
ago,  of  the  rule  of  law,  that  all  sales  and  assignments  of  chat- 
tels, by  way  of  mortgage,  of  which  the  possession,  under  any 
pretence  whatever,  is  retained  by  the  vendor  or  mortgagor, 
should  be  deemed  to  be  absolutely  fraudulent  and  void  as 


ALBANY.JDECEMBEH,  1842. 


Hanford  r.  Artcher. 


against  creditors  and  subsequent  purchasers  j  that  nothing  short 
of  such  a  rule  can  effectually  reach  the  evil  against  which 
the  statute  was  directed ;  and  that  such  a  rule  would  be  one 
of  a  most  salutary  tendency.  It  certainly  is  not  surprising  that 
a  judge,  honestly  holding  such  doctrines  as  sound  principles  of 
public  policy,  with  a  view  to  their  utmost  application,  should, 
in  every  case  coming  before  him  for  adjudication,  push  his 
severe,  and,  as  seems  to  others,  ultra  interpretations  of  the  stat- 
ute, to  the  utmost  verge  of  legal  sanction,  and  carry  their  ap- 
plication to  the  very  farthest  limit  which  the  circumstances 
of  the  case  would  possibly  permit.  Such  would  naturally  be 
the  honest  and  ardent  tendency  of  his  mind.  And  it  may  well 
be,  therefore,  that  this  honest  impulse  may  have  led,  uncon- 
sciously doubtless,  to  the  endeavor  to  supply,  by  judicial  inter* 
pretation,  what  is  imagined  to  be  defective  in  the  legislative 
enactment.  But  the  question  is  not  what  ought  to  be,  but  what 
is  the  law  ?  The  former  is  for  the  exclusive  consideration  of 
the  legislative  power ;  while  the  latter  only  can  be  regarded 
by  the  judiciary.  It  is  to  be  feared  that  this  sound  principle 
has  not  always  been  sufficiently  observed.  For  although  in 
the  earlier  cases  of  Hall  v.  Tuttle,  Cunningham  v.  Freeborn, 
Gardner  v.  Adams,  and  some  others,  the  statute  received  an 
interpretation  in  conformity  with  its  palpable  import,  yet  so 
fatly  as  the  case  of  Doane  v.  Eddy,  in  1837,  the  supreme 
court,  (Ch.  J.  Nelson,  dissenting,}  put  themselves  back  upon 
the  severest  rule  of  some  of  the  old  decisions,  and  advanced  a 
doctrine  which  seems  to  me  as  inconsistent  with  the  terms,  as 
it  is  with  the  true  intent  of  the  statute.  In  the  dissenting  opin- 
ion of  the  chief  justice,  however,  the  statute  received,  in  few 
words,  a  very  full,  just  and  satisfactory  interpretation.  The 
doctrine  of  the  supreme  court  in  that  case  was  more  fully  de- 
veloped, enforced  and  followed  in  Randall  v.  Cook,  (17  Wend. 
53,)  in  Wood  v.  Lowry,  (id.  492,)  and  again  in  Beekman  v. 
Bond,  (19  Wend.  444,)  where,  in  addition  to  the  severe  rule 
adopted  in  the  previous  cases,  the  court,  by  a  restricted  appli- 
cation of  the  fourth  section  of  the  third  title  of  the  statute,  put 


316  CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  v.  Artcher. 


forth  a  doctrine  that  would  deprive  the  jury  of  an  expressly 
granted  jurisdiction,  in  violation,  as  seems  to  me,  of  the  clear 
language,  and  most  manifest  intent  of  the  statute.  This  doc- 
trine, too,  is  attempted  to  be  sustained  by  a  course  of  reasoning 
as  remarkable,  certainly,  as  its  conclusions  appear  to  be  errone- 
ous. The  learned  judge  who  delivered  the  opinion  of  the  court 
in  Beekman  v.  Bond,  says  :  "  The  fifth  section  of  title  two  de- 
clares, in  substance,  that,  as  against  creditors  and  purchasers,  ev- 
ery sale  and  conveyance  of  goods,  without  a  change  of  possess- 
ion, l  shall  be  presumed  to  be  fraudulent  and  void.'  The  only 
question  of  fact  here  is  about  possession.  The  provision  is  not, 
that  a  conveyance  of  goods  made  with  a  fraudulent  intent,  shall 
be  void  ;  but  that  a  conveyance  of  goods  without  a  change  of 
possession,  shall  be  void.  Is  the  fraud  in  such  cases  a  question 
of  fact  ?  Let  the  statute  answer.  The  transaction  '  shall  be  pre- 
sumed to  be  fraudulent  and  void.'  This  is  the  language  of  the 
law,  and  except  under  special  circumstances,  a  jury  has  nothing 
to  do  with  the  question."  The  same  learned  judge  in  the  recent 
case  of  Butler  v.  Van  Wyck,  (1  HiIVs  R.  455,)  thus  explains 
himself :  "  In  Beekman  v.  Bond  an  attempt  was  made  to  show 
that  this  provision  [2  R.  S.  137,  §  4,]  had  ample  scope  for  ope- 
ration without  touching,  and  that  it  did  not  in  fact  touch,  this 
point.  It  is  not  only  enacted  that  conveyances  made  with  afrau' 
dulent  intent  shall  be  void,  but  the  legislature  has  gone  further, 
and  singled  out  and  seized  upon  that  common  and  strong  badge 
of  fraud — continued  possession  in  the  vendor  or  mortgagor — 
and  declared,  that  without  an  immediate  delivery,  the  transfer 
i  shall  be  presumed  to  be  fraudulent  and  void.'  The  law  itself 
makes  the  inference,  and  nothing  is  left  for  a  jury  " 

From  the  above,  one  might  be  led  to  suppose  that  the  learn- 
ed  judge  must  have  looked  for  the  matter  upon  which  he  thus 
comments,  in  the  original  reports  of  the  revisers,  and  not  in  the 
statute  book  ;  for  it  is  believed  that  the  latter  contains  no 
such  absolute  or  unqualified  propositions  as  are  above  stated. 
Such  is  not  the  law  "  written  in  the  statute  book."  There  is 
in  the  statute  no  where  to  be  found,  even  in  substance,  the  ab- 


ALBANY,  DECEMBER,  1842.  317 

Hanford  ».  Artcber. 

solute  and  unqualified  provision  "  that,  as  against  creditors  and 
purchasers,  every  sale  and  conveyance  of  goods  without  a 
change  of  possession,  shall  be  presumed  to  be  fraudulent  and 
void."  Nor  is  there  in  substance  or  in  spirit  a  provision  "  that 
a  conveyance  of  goods,  without  a  change  of  possession,  shall 
be  void  ;"  or  that,  •"  without  an  immediate  delivery,  the  trans- 
fer shall  be  presumed  to  be  fraudulent  and  void."  This  is  not 
the  language  of  the  law.  But  the  statute  does,  in  substance, 
provide  that  every  sale  and  assignment  of  goods  and  chattels  by 
way  of  mortgage  or  on  any  condition  whatever,  unless  accom- 
panied by  an  immediate  delivery,  and  followed  by  an  actual 
and  continued  change  of  possession,  shall  be  presumed  to  be 
fraudulent  and  void  as  against  creditors  and  subsequent  pur- 
chasers, and  shall  be  conclusive  evidence  of  fraud,  unless  it  be 
made  to  appear  on  the  part  of  those  claiming  under  such  sale 
or  assignment ,  that  the  same  was  made  in  good  faith,  and  with- 
out any  intent  to  defraud  such  creditors  or  purchasers. 

Now,  the  concluding  qualification  of  this  provision  of  the 
statute  is  an  essential  part  of  the  two  propositions  which  the 
provision  contains — 1st,  as  to  the  presumption  ;  and  2d,  as  to 
the  conclusive  evidence  of  fraud.  Neither  of  these  two  prop- 
ositions is  absolute,  but  both  are  made  sub  modo.  Without 
their  expressed  condition  or  qualification,  they  would  represent 
neither  the  truth  nor  the  law ;  neither  what  the  legislature  has 
expressed,  nor  what  it  intended.  It  is  true,  that  the  revisers 
originally  presented  the  first  of  these  propositions  as  the  learn- 
ed judge  has  stated  it,  without  qualification.  But  the  revising 
legislature,  after  much  discussion  and  deliberation,  added  the 
second  proposition  and  the  qualification  ;  thus  essentially 
changing  the  law  from  that  which  was  proposed  by  the  revi- 
sers. It  was  undoubtedly  with  reference  to  this  difference  be- 
tween the  original  proposition  of  the  revisers  and  the  statute 
as  finally  enacted  by  the  legislature,  that  the  distinguished  sen- 
ator above  quoted  says :  "  The  decisions  in  this  state  since  the 
statute  of  1830,  have,  it  seems  to  me,  been  more  in  the  spirit 
of  the  learned  revisers,  than  in  that  of  the  enacting  sovereign 
power." 


318  CASES  IN  THE  COURT  OF  ERRORS. 

Hantord  v.  Artcher. 

But  in  Beekman  v.  Bond,  the  learned  judge  adds  :  il  To  my 
mind  it  is  quite  clear  that  the  legislature  did  not  intend,  on  one 
page  of  the  statute  book,  to  declare,  as  matter  of  law,  that  a.  par- 
ticular transaction  should  be  presumed  fraudulent;  and  then,  on 
the  next  page,  to  say  that  the  fraud  should  be  a  question  of  fact 
and  not  of  law.  There  is  no  necessity  for  giving  a  construction 
to  the  statute  which  will  involve  such  a  contradiction."  Certainly 
not.  Read  the  statute  as  it  was  enacted,  and  all  will  be  harmo- 
nious. The  whole  provision  of  the  fifth  section  of  title  two  must 
be  taken  together.  The  qualification  with  which  it  concludes 
contains  a  question  of  good  faith  or  fraudulent  intent,  which 
is  to  determine  the  character  and  effect  of  the  sale  or  assignL 
ment  under  the  two  preceding  propositions  of  the  provision. 
This  question  of  fraudulent  intent  goes  to  the  whole  provision 
of  the  section.  And  this  is  one  of  the  questions  of  fraudulent  in- 
tent, which,  by  the  fourth  section  of  title  three. are  expressly  de- 
clared to  be  "  questions  of  fact,  and  not  of  law."  As  Chief 
Justice  Nelson,  in  Doane  v.  Eddy,  very  properly  says,  "  the 
fraudulent  intent  referred  to  in  section  four  (of  title  three)  means 
the  intent  to  defraud  mentioned  in  section  five,  (of  title  two.)" 
How  then  can  it  be  said  that,  "  except  under  special  circum- 
stances, a  jury  has  nothing  to  do  with  the  question  ;"  or  that 
"  the  law  itself  makes  the  inference,  and  nothing  is  left  for  a 
jury"  In  the  language  of  the  learned  judge,  "  To  my  mind 
it  is  quite  clear  that  the  legislature  did  not  intend,  on  one  page 
of  the  statute  book,  to  declare,  as  matter  of  law,  that  a  particu- 
lar transaction  should  be  presumed  fraudulent ;  and  then,  on 
the  next  page,  to  say  that  the  fraud  should  be  a  question  of 
fact  and  not  of  /aw."  But  the  latter,  the  legislature  certainly 
has  expressly  said,  and  undoubtedly  intended.  The  former  is 
merely  an  inference  of  the  learned  judge  j  and  is  believed  to 
be  wholly  unwarranted  by  either  the  terms,  or  the  intent  oi  the 
statute.  The  revisers  undoubtedly  intended  to,  and  did  so  pre- 
sent the  law  ;  but  the  legislature  did  not  so  enact  it.  They 
subjected  the  general  proposition  as  to  fraud,  to  the  qualifying 
condition  of  good  faith,  or  fraudulent  intent ;  and  declared  thai 


ALBANY,  DECEMBER,  1842. 


Hanford  r.  Artcher. 


fraudulent  intent  to  be  a  question  of  fact  and  not  of  law.  The 
supposed  contradiction  of  the  statute,  therefore,  will  thus  be 
found,  upon  a  careful  examination  and  just  interpretation  of  its 
provisions,  not  to  exist. 

This  new  statute,  while  it  adopts,  under  qualification,  the 
severe  principle  of  "  conclusive  evidence  of  fraud?  laid  down 
in  some  of  the  modern  cases,  at  the  same  time  declares  what 
shall  remove  the  conclusiveness  of  this  evidence,  and  suffi- 
ciently rebut  the  prima  facie  presumption  of  fraud  ;  viz.  th« 
party  claiming  under  the  sale  or  assignment  making  it  appear 
that  the  same  was  made  in  good  faith  and  without  any  intent 
to  defraud.  The  statute  too,  in  declaring,  as  it  does,  in  the 
fourth  section  of  its  third  title,  that  the  question  of  fraudulent 
intent  shall  be  deemed  a  question  of  fact,  and  not  of  law,  has 
finally  settled  the  long  agitated  point,  whether  the  question  of 
fraud,  in  the  case  contemplated  b)  the  statute,  be  a  matter  of 
fact  to  be  determined  by  the  jury  in  a  court  of  law,  or  an  in- 
ference of  law  to  be  drawn  bj  the  courl. 

In  general,  this  statute,  upnn  due  examination  and  a  fair  in- 
terpretation, will,  I  think,  be  foun  I  to  have  accomplished  the 
following  important  objects,  and  thus  put  to  rest  the  vexatious 
questions  long  agitated  in  regard  to  them,  viz.  1.  It  has  abol- 
ished the  distinction  sometimes  attempted  to  be  drawn  between 
absolute  sales  and  conditional  assignments  ;  and  thus  avoid- 
ed the  question  whether  continued  possession  in  the  vendor 
or  assignor  be  consistent  or  inconsistent  with  the  deed.  2.  It 
declares  what  shall  rebut  the  evidence  of  fraud  raised  by 
the  statute  from  a  want  of  change  of  possession  ;  viz.  good 
faith,  and  absence  of  intent  to  defraud.  3.  It  throws  the  bur- 
den of  proof  of  such  good  faith  and  absence  of  intent  to  de- 
fraud, upon  the  party  claiming  under  the  sale  or  assignment. 
4.  It  declares  the  question  of  fraudulent  intent  to  be  a  ques- 
tion of  fact  and  not  of  law.  Except  in  these  particulars,  the 
statute  of  1830  leaves  the  law,  as  regards  the  case  now  under 
review,  substantially  as  it  found  it  j  for  there  can  be  little  dif- 


320  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  ».  Artcher. 

ference  between  prima  facie  evidence,  and  conclusive  evidence 
that  may  be  explained.  Practically,  they  amount  to  the  same 
thing  ;  because  prima  facie  evidence,  if  unexplained,  becomes 
conclusive.  Whereas,  evidence  declared  to  be  conclusive  un- 
less explained,  is,  if  unexplained,  no  more  than  conclusive  ; 
and  if  satisfactorily  explained,  like  prima  facie  evidence,  is 
fully  rebutted.  The  statute  very  'properly  throws  the  burden 
of  proof  on  the  party  claiming  under  the  sale  or  assignment  • 
and  while  it  prescribes  what  shall  rebut  the  evidence  of  fraud 
raised  by  the  statute,  and  submits  that  as  a  fact  to  be  deter- 
mined by  the  jury,  it  leaves  the  court  in  the  unimpaired  pos- 
session and  exercise  of  all  its  proper  prerogatives  of  deciding 
upon  the  legality,  competency  and  relevancy  of  testimony,  but 
not  upon  its  weight  and  sufficiency  on  a  question  declared  by 
the  statute  to  be  one  of  fact.  These  belong  properly  to  the 


The  statute  has  thus  clearly  defined  and  fixed  the  boundaries 
of  the  proper  jurisdiction  of  the  court  and  jury  ;  and  has  thus 
provided  for  the  harmonious  and  salutary  action  of  these  two 
departments  of  our  judiciary  system,  both  perhaps  equally  es- 
sential in  the  due  administration  of  public  justice.  The  statute 
of  1833  does  not  materially  change  the  law  upon  this  subject  ; 
but  contains  some  additional  provisions  in  regard  to  mortgages 
of  chattels.  In  the  case  of  such  a  mortgage,  unaccompanied 
by  an  immediate  delivery,  and  not  followed  by  an  actual  and 
continued  change  of  possession  of  the  things  mortgaged,  it  de- 
clares the  mortgage  void,  unless  the  mortgage,  o-r  a  true  copy 
thereof,  be  filed  as  prescribed  by  the  statute,  and  annually  re- 
newed with  a  statement  of  the  amount  due  on  the  mortgage. 
The  object  of  this  provision  was  undoubtedly  to  give  publi- 
city to  the  transaction,  and  thus  to  put  creditors,  purchasers 
and  subsequent  mortgagees  on  their  guard.  So  that,  in  order 
to  give  validity  and  effect  to  a  mortgage  of  chattels,  unaccom- 
panied by  a  change  of  possession,  the  party  claiming  under  it 
is  now  held  to  prove,  not  only  that  the  mortgage  was  given  in 
good  faith  and  without  any  intent  to  defraud,  but  also  that  the 


ALBANY,  DECEMBER,  1842.  321 


Hanford  r.  Artcber. 


requirements  of  the  statute  of  1833  have  been  complied  with. 
This  being  done,  I  cannot  doubt  that  it  was  the  intention 
of  the  legislature  to  give  effect  to  such  mortgage  of  chat- 
tels, even  although  possession  do  not  accompany  or  follow 
the  deed.  Nor  can  I  doubt  that  such  intention  of  the  legisla- 
ture has  been  fully  carried  out  in  the  provisions  it  has  adopted, 
and  in  the  language  in  which  they  are  expressed. 

Such  are  believed  to  be  the  provisions  of  the  statute  in 
question  ;  and  such  were  evidently  the  objects  and  intentions 
of  the  legislature  in  passing  it.  With  the  terms  of  the  statute 
thus  interpreted,  and  with  these  supposed  objects  and  inten- 
tions of  the  legislature  in  its  enactment,  the  doctrine  of  this 
court  fully  harmonizes.  And  although  the  doctrine  of  the  case 
of  Doane  v.  Eddy,  more  fully  developed  in  Randall  v.  Cook, 
and  still  more  explicitly  declared  in  Butler  v.  Van  Wyck,  has 
been  adhered  to  by  two  of  the  judges  of  the  supreme  court, 
down  through  all  the  subsequent  cases  of  Stoddard  v.  Butler, 
Smith  fy  Hoe  v.  Jlcker,  Cole  4*  Thurman  v.  White,  Butler  v. 
Van  Wyck,  and  the  case  now  under  review  here,  yet  the  doc- 
trine of  this  court  may  be  considered  as  now  finally  settled  and 
established;  and,  as  such,  has  become  the  law  of  the  state. 
That  doctrine  is  clearly  and  well  laid  down  in  the  dissenting 
opinion  of  Nelson,  Ch.  J.  in  Doane  v.  Eddy,  in  the  su- 
preme court ;  generally  in  the  opinions  of  Senators  Dickinson 
and  Verplanck  in  Stoddard  v.  Butler,  and  in  the  cases  of 
Smith  $  Hoe  r.  Acker,  and  Cole  Sf  Thurman  v.  White,  in  this 
court.  In  those  cases,  I  think  the  statute  has  been  correctly 
interpreted,  and  the  law  well  settled.  That  law,  until  changed, 
is  binding  upon  this,  as  it  is  upon  the  subordinate  courts, 
and  the  people  of  this  state.  It  should,  therefore,  here  at 
least,  be  vigilantly  and  firmly  sustained.  To  this  we,  at 
all  events,  should  faithfully  adhere.  This  has  become 
the  more  necessary  and  is  the  more  incumbent  upon  us, 
since,  for  the  first  time  in  the  history  of  this  court,  its 
controlling  powers  are  drawn  into  question,  and  the  au- 
thority of  its  decisions  denied.  If  this  doctrine,  so  novel 
'  VOL.  IV.  41 


322  CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  v.  Artcher. 


and  alarming  in  itself,  had  been  only  casually  or  carelessly  ex- 
pressed, or  had  had  a  humbler  origin,  it  would  have  carried 
with  it  less  weight,  and  would  of  course  be  less  dangerous. 
Grave  even  as  it  is  in  its  character  and  tendency,  still,  under 
ordinary  circumstances,  it  might  safely  be  left  to  the  sure  cor- 
rective of  sound  and  enlightened  public  opinion.  But  the  high 
personal  character  and  elevated  official  station  of  the  individual 
from  whom  it  emanates,  as  well  as  the  labored  and  apparently 
deliberate  manner  in  which  it  is  put  forth,  are  all  calculated  to 
give  to  this  new  doctrine  a  credit  and  currency,  which  in  itself 
it  could  never  have  ;  and  to  aggravate  the  mischiefs  it  natural- 
ly tends  to  produce.  It  ought  not,  therefore,  to  pass  in  silence 
here.  Some  notice  of  it  seems  to  be  not  merely  called  for,  but 
forced  upon  the  members  of  this  court,  by  the  highest  conside- 
rations of  public  duty,  and  a  just  regard  for  the  character  and 
usefulness  of  the  court  of  which  we.  are  members.  So  long  as 
I  have  the  honor  of  being  a  member  of  this  court,  my  sense  of 
duty  will  not  permit,  me  to  allow  even  my  silence  to  be  con- 
strued into  an  acquiescence  in  a  doctrine  that  would  abridge 
the  legitimate  powers,  degrade  the  character,  and  impair  the 
usefulness  of  this  court ;  a  doctrine  too,  which  I  deem  as 
unconstitutional  in  its  principle,  and  as  disorganizing  and  de 
structive  in  its  tendency,  as  it  is  novel  in  its  enunciation. 

The  people,  in  forming  the  organic  law  of  the  government 
of  this  state,  very  wisely  foresaw,  that  in  its  action  and  pro- 
gress, questions  of  interpretation,  of  the  settlement  of  legal 
principles,  and  of  their  application,  would  frequently  arise ; 
and  thence  the  necessity  of  constituting  some  tribunal,  with 
general  appellate  and  supervisory  powers,  whose  decisions 
should  be  final,  and  conclusively  settle  and  declare  the  law. 
This  was  supposed  to  have  been  accomplished  in  the  organiza- 
tion of  this  court.  Heretofore  this  court,  under  the  constitution, 
has  been  looked  to  by  the  people  as  the  tribunal  of  last  resort 
in  the  state ;  and  it  has  hitherto  been  supposed,  that  when  this 
court  had  decided  a  case  upon  its  merits,  such  decision  not 
only  determined  the  rights  of  the  parties  litigant  in  that  par- 


ALBANY,  DECEMBER,  1842.  323 

t 

Hanford  v.  Artchcr. 

ticular  case  ;  but  that  it  also  settled  the  principles  involved  in 
it,  as  permanent  rules  of  law  universally  applicable  in  all  future 
cases  embracing  similar  facts,  and  involving  the  same  or  analo- 
gous principles.  These  decisions  thus  became  at  once  public 
law,  measures  of  private  right  and  landmarks  of  property. 
They  determined  the  rights  of  persons  and  of  things.  Parties 
entered  into  contracts  with  each  other  with  reference  to  them 
as  to  the  declared  and  established  law  ;  law  equally  binding 
upon  the  courts  and  the  people.  But  the  doctrine  recently  put 
forth  would  at  once  overturn  this  whole  body  of  law  founded 
upon  the  adjudications  of  this  court,  built  up  as  it  has  been  by 
long  continued  and  arduous  labors,  grown  venerable  with 
years,  and  interwoven  as  it  has  become  with  the  interests,  the 
habits,  and  the  opinions  of  the  people.  Under  this  new  doc- 
trine, all  would  again  be  unsettled — nothing  established.  Like 
the  ever  returning  but  never  ending  labors  of  the  fabled  Sisy- 
phus, this  court,  in  disregard  of  the  maxim  of  "  stare  decisis]' 
would,  in  each  recurring  case,  have  to  enter  upon  its  examina- 
tion and  decision  as  if  all  were  new  ;  without  any  aid  from  the 
experience  of  the  past,  or  the  benefit  of  any  established  princi- 
ple or  settled  law.  Each  case,  with  its  decision  being  thus 
limited  as  law  to  itself  alone,  would  in  turn  pass  away  and  be 
forgotten,  leaving  behind  it  no  record  of  principle  establish- 
ed, or  light  to  guide,  or  rule  to  govern  the  future. 

Such  is  the  condition  to  which  this  novel  doctrine,  if  practi- 
cally adopted,  would  reduce  us — a  condition  which  a  former 
distinguished  member  of  this  court,  borrowing  the  language 
of  an  ancient  writer,  well  and  forcibly  described  as  marking  a 
miserable  people,  "  where  the  laws  are  vague  and  uncertain" 
But  there  is  another  aspect  of  this  novel  doctrine  which  seems 
to  me  still  more  alarming  and  destructive.  It  is  said,  that  "  it 
would  be  strange  indeed  if  other  courts  were  bound  to  follow 
them  [the  decisions  of  this  court]  at  all  events,  and  without 
looking  into  the  reasons  on  which  they  stand."  Again,  "  the 
decisions  of  that  court,  [the  court  of  errors,]  although  final  as 
between  the  parties  litigant,  are  so  far  from  being  conclusive 


324       CASES  IN  THE  COURT  OF  ERRORS. 


Hanford  v.  Artcher. 


by  way  of  authority,  that  they  are  entitled  to  much  less  weight 
than  the  judgments  of*  those  courts  which  consider  themselves 
bound  by  legal  adjudications." 

To  see  the  supreme  court  engaged  in  passing  in  review  a  de- 
cision of  this  court,  in  order,  by  an  examination  of  its  "  reasons," 
to  ascertain  whether  it  will  adopt  its  principle  as  a  rule  of  law, 
would  certainly  be  a  very  novel  spectacle.     This  would  be  re- 
versing the  order  of  proceeding  contemplated  by  the  constitu- 
tion.    But  suppose  this,  however  disorderly  it  may  appear,  to 
be  attempted,  let  us  see  what  would  be  its  practical  result. 
This  court  decides  a  case  between  A.  and  B.     The  supreme 
court  has  a  case  before  it  between  C.  and  D.,  analagous  in  its 
facts  and  principles.     The  supreme  court  takes  up  the  decision 
of  this  court,  reviews  its  reasons,  finds  them  unsatisfactory,  and 
comes  to  the  conclusion  that  the  decision  is  bad  law,  or  rather, 
that  "  it  is  no  law  at  all  j"  and  of  course  not  binding  as  an  au- 
thoritative precedent.     The  court,  therefore,  proceeds  to  decide 
the  case  in  hand  in  opposition  to  it.     The  case  is  then  brought 
up  to  this  court  by  writ  of  error.     This  court,  followipg  its 
own  precedent  laid  down  in  the  case  of  A.  and  B.,  reverses  the 
judgment  of  the  supreme  court  in  the  case  of  C.  and  D. ;  and 
this,  even  according  to  this  new  doctrine,  is  binding  and  con- 
clusive between  the  parties  litigant.     Now,  what  has  been  ac- 
complished by  the  supreme  court  thus  refusing  to  acknowl- 
3dge  as  a  precedent  the  decision  of  this  court  in  the  case  of  A. 
and  B.,  and  to  apply  it  as  a  rule  of  law  in  its  own  decision  of 
.hat  of  C  and  D.?     Literally  nothing,  except  to  subject  the 
parties  to  increased  expense,  and  to  illustrate  the  absolute  fu- 
tility of  a  doctrine  as  impracticable  in  its  purpose  as  it  is  un- 
constitutional in  its  principle  and  disorganizing  in  its  tenden- 
cy and  effect.     Extend  this  novel  doctrine  to  the  subordinate 
courts,  and  what  would  be  the  spectacle  there  presented,  and 
the  consequences  that  would  inevitably  follow  1     The  circuit 
courts  and  courts   of  common  pleas,  instead  of  receiving  and 
following  as  authoritative  precedents,  the  decisions  of  the  su- 
preme court,  acquiesced  in  by  the  parties,  would  be  occupied  in 


ALBANY,  DECEMBER,  1842.  325 


Hanford  v.  Artcher. 


reviewing  those  decisions,  examining  their  reasons,  and  either 
recognizing  or  rejecting  the  former  as  they  find  the  latter  sat- 
isfactory or  otherwise.  The  justices  of  the  peace  too,  and 
their  courts,  would  be  similarly  occupied  in  regard  to  the  de- 
cisions of  the  courts  of  common  pleas  ;  and  thus  the  subordi- 
nate courts  generally,  released  from  the  controlling  and  con- 
servative principle  to  which  they  have  very  wisely  been  sub- 
jected by  the  constitution  and  the  laws,  would,  under  this  new 
doctrine,  instead  of  forming  as  at  present,  dependent  parts  of 
one  harmonious  whole,  become  not  only  wholly  independent 
of  each  other,  but  conflicting  in  their  powers  and  their  action. 
The  authority  of  law  and  the  constitution  would  thus  be  subvert- 
ed, the  course  of  things  reversed  and  retrograde,  and  every 
thing  tend  to  disorder,  confusion  and  ruin. 

Again,  it  is  said  that  the  decisions  of  this  court  "  are  so  far 
from  being  conclusive  by  way  of  authority,  that  they  are  enti- 
tled to  much  less  weight  than  the  judgments  of  those  courts 
which  consider  themselves  bound  by  legal  adjudications." 
Now  this  is  a  very  pregnant  proposition  ;  and,  if  well  founded, 
is  as  grave  as  it  is  disparaging.  Without  hazarding  the  asser- 
tion, it  would  imply  that  this  court  does  not  consider  itself 
bound  by  legal  adjudications  ;  an  implication  as  unjust  to  the 
character  of  this  court,  as  it  is  believed  to  be  whol'v  unsus- 
tained  by  any  thing  to  be  found  either  in  the  declarations  or 
the  acts  of  the  court  as  such.  On  the  contrary,  it  is  confident- 
ly believed  that  our  books  of  reports  will  furnish  abundant  evi- 
dence that  this  court  has,  in  general,  adhered  to  acknowledged 
authority  with  as  much  steadiness  and  uniformity  as  others,  and 
much  more  so  than  could  have  been  reasonably  anticipated  from 
its  constitutional  organization.  Few  cases  can  be  found  where, 
by  its  decisions,  it  has  either  overturned  or  disregarded  the  well 
settled  principles  and  rules  of  law. 

But  it  is  said  that  this  court  has  not  always  followed  its  own 
decisions.  What  other  court  in  any  country  has  done  so  ?  The 
supreme  court  of  our  own  state  does  not  certainly  form  an  ex- 
ception to  the  general  truth  in  this  respect  Even  the  history 


326       CASES  IN  THE  COURT  OF  ERRORS. 

t  Hanford  v.  Artcher. 

of  the  leading  principle  of  the  very  case  now  under  review 
here,  furnishes  abundant  evidence  that  neither  in  England,  nor 
in  this  country,  have  the  courts  invariably  held  the  same  doc- 
trine upon  the  same  subject.  It  is,  however,  confidently  be- 
lieved that  this  court,  in  its  adjudications,  has  not  been  want- 
ing in  a  due  and  just  respect  for  acknowledged  authority,  in  a 
uniform  and  proper  regard  for  its  own  decisions,  and  a  careful 
and  strict  adherence  to  well  established  law. 

But  the  author  of  this  novel  doctrine,  in  the  case  in  which  it 
is  put  forth,  after  denying  generally  the  authority  of  the  de- 
cisions of  this  court,  has  permitted  himself  to  say :  "  But 
when,  as  in  Smith  8f  Hoe  v.  dicker,  the  court  has  pro- 
fessedly departed  from  the  whole  course  of  decisions,'  the 
judgment  is  entitled  to  no  weight  at  all."  To  seize  up- 
on isolated  and  casual  expressions  of  individual  members 
of  the  court,  and  apply  tneni,  as  general  and  governing 
principles,  even  to  -the  individual  opinions  of  such  members, 
is  of  more  than  questionable  fairness  j  but  to  appropriate 
them  generally  and  say  that  "  the  court  has  professedly  depart- 
ed from  the  whole  course  of  decisions,"  is  as  incorrect  in  point 
of  fact,  as  it  is  grossly  unjust  to  this  court.  In  point  of  fact, 
it  may  be  asked  when  and  where  did  this  court,  as  such,  ever 
make  such  a  profession  1  The  injustice  of  the  remark  will  be 
fully  illustrated  by  a  reference  to  the  practice  of  this  court,  in 
forming  and  pronouncing  its  decisions.  The  court  hears  an 
argument  in  a  given  case.  It  does  not  afterwards  meet  for 
the  purpose  of  consultation  or  deliberation  ;  but  each  mem- 
ber, separately  and  apart,  examines  the  case,  and  prepares  for 
its  decision.  The  court  then  comes  together  ;  the  opinions  of 
the  members  are  delivered  ;  and  the  court  then  unites  in  a  gen- 
eral conclusion,  either  of  affirmance  or  reversal  of  the  judg- 
ment or  decree  reviewed.  For  this  conclusion,  and  for  this 
only,  is  the  court,  as  such,  responsible  ;  unless,  indeed — which 
is  very  rarely  the  case — the  court  proceed  by  resolution,  to  de- 
clare the  grounds  upon  which  that  general  conclusion  rests. 
Different  minds  arrive  at  this  conclusion  by  different  processes 


ALBANY,  DECEMBER,  184*  337 


Ilunford  r.  Artcher. 


of  reasoning  j  but  no  member  is  answerable  either  for  the 
reasons  or  the  language  of  any  other  member.  Each  is  respon- 
sible only  for  his  own,  and  for  the  general  conclusions  and  res- 
olutions in  which,  by  his  express  votes,  he  may  have  united. 
The  gross  injustice,  therefore,  as  well  as  inaccuracy  in  point 
of  fact,  of  this  statement  as  to  what  this  court  professed  in  the 
case  of  Smith.  <$•  Hoe  v.  Acker ,  is  too  manifest  to  require  fur- 
ther illustration  or  remark. 

Nor  are  the  unsoundness  of  the  principle,  the  tendency  to 
disorganization,  and  the  manifest  injustice  of  this  new  doctrine, 
at  all  relieved  by  the  general  tone  and  language  in  which  it  is 
put  forth.  They  all  constitute  one  -whole  of  unmixed  char- 
acter, and  of  deep  and  unfeigned  regret ;  calculated  only  to 
bring  our  judiciary  system  into  distrust  with  our  own  citizens, 
and  discredit  with  the  world  ;  and  thus  to  impair  the  useful- 
ness, and  ultimately  break  down  this  most  important  institu- 
tion of  the  state.  To  this  end  I  know  the  distinguished  author 
of  this  new  and  alarming  doctrine  would  not  willingly  contrib- 
ute ;  nor  would  he  willingly  have  his  name  associated  with 
such  a  result.  I  would,  therefore,  invoke  the  aid  of  his  talents 
and  the  weight  of  his  high  personal  and  official  character,  rath- 
er in  building  up  our  judiciary  system,  in-  sustaining  and 
strengthening  its  separate  parts,  and  in  promoting  the  harmony 
of  the  whole  ;  and  thus  commending  it  to  the  increased  confi- 
dence of  our  own  citizens,  and  to  the  greater  respect  of  the 
world. 

In  regard  to  the  case  in  hand,  while  I  concur  generally  in 
the  opinion  of  the  supreme  court,  there  is,  among  others,  a 
point,  and  that  a  vital  one,  on  which  I  differ  altogether  from 
that  opinion.  The  circuit  judge,  in  charging  the  jury  at  the 
trial,  read  to  them  the  section  of  the  statute  applicable  to  the 
case,  and  submitted  it  to  their  consideration.  If  the  judge  had 
stopped  here,  he  would  have  been  considered  as  having  adopt- 
ed the  statute  as  a  part  of  his  charge,  or  as  having  charged 
the  jury  in  the  very  language  of  the  statute.  This  would  have 
been  unexceptionable.  But  when  he  subsequently  charged 


328  CASES  IN  THE  COURT  OF  ERRORS. 

Hanford  v.  Artcher. 

that  "if  the  jury  found  otherwise,"  (that  is,  that  the  assignment 
had  not  been  accompanied  by  an  immediate  delivery,  and  fol- 
lowed by  an  actual  and  continued  change  of  possession  of  the 
things  assigned,)  "  if  they  found  that  the  property  remained  in 
the  possession  of  Norton  until  levied  upon  under  the  said  exe- 
cution, then  they  must  enquire  whether  there  were  any  good 
reasons  shown  by  the  plaintiff \  which  they  could  approve,  why 
there  had  not  been  an  immediate  delivery,  and  an  actual  and 
continued  change  of  possession"  he  misdirected  the  jury  on  an 
important  point.  Instead  of  directing  them  to  the  only  enqui- 
ry in  that  case  expressly  prescribed  by  the  statute,  he  led  their 
minds  to  one  not  in  terms  embraced  in  its  provisions,  and  cal- 
culated to  present  to  them  a  false  issue.  This  was  error.  In" 
stead  of  the  enquiry  thus  directed  by  the  circuit  judge,  he  should 
have  charged  the  jury  that  "if  they,  found  the  property 
remained  in  the  possession  of  Norton  until  levied  upon  under 
the  said  execution,  then  they  must  enquire"  whether  it  had  been 
mad$  to  appear,  on  the  part  of  those  claiming  under  the  assign- 
ment, that  the  same  was  made  in  good  faith,  and  without  any 
intent  to  defraud  creditors  or  subsequent  purchasers.  This 
would  have  been  in  the  language  and  spirit  of  the  statute.  But 
the  direction  of  the  circuit  judge  gave  an  artificial,  restricted, 
and  erroneous  interpretation  to  the  statute ;  an  interpretation 
not  in  conformity  with  the  law  as  finally  settled  by  this  court, 
and  well  calculated  to  mislead  the  jury.  Therefore,  although 
the  circuit  judge  did  submit  the  case  to  the  jury,  in  pursuance 
of  the  statute,  yet  he-  did  so  under  an  erroneous  direction  as  to 
the  law,  which  may  be  fairly  supposed  to  hare  misguided 
the  jury,  and  to  have  led  them  to  wrong  conclusions.  This 
was  error ;  and  a  verdict  thus  obtained  should  have  been  set 
aside  and  a  new  trial  granted. 

Without  going  into  a  particular  examination  of  the  oth- 
er points  presented  in  the  case,  I  am  of  opinion  that  the 
charge  of  the  circuit  judge  was  wrong  in  the  important  respect 
above  indicated,  and  that  the  judgment  of  the  supreme  court 
affirming  the  same  was  of  course  erroneous,  and  should  be  re- 


ALBANY,  DECEMBER,  1842.  329 

Alston  v.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

versed,  and  a  venire  de  novo   awarded,  with  costs  to  abide  the 
result. 

ROOT,  senator,  also  delivered  a  written  opinion  in  favor  of 
reversing  the  judgment  of  the  supreme  court,  and  PAIGE,  sena 
tor,  an  oral  opinion  in  favor  of  affirming  the  judgment. 

On  the  question  being  put,  "  Shall  this  judgment  be  revers- 
ed ?"  the  members  of  the  court  voted  as  follows  : 

For  reversal :  The  PRESIDENT,  and  Senators  BOCKEE,  DICK- 
INSON, DIXON,  FRANKLIN,  HARD,  HAWKINS,  HOPKINS,  HUNT, 
JOHNSON,  NICHOLAS,  PLATT,  RHOADES,  ROOT,  RTTGER,  VARNEY, 
and  WORKS — 17. 

For  affirmance  :  The  CHANCELLOR,  and  Senators  BARTLIT, 
CORNING,  FOSTER,  PAIGE,  SCOTT  and  VABJAN — 7. 

Judgment  reversed. 


ALSTON  vs.  THE  MECHANICS'  MUTUAL  INSURANCE  COMPANY  IN 
THE  CITY  OF  TROY. 

Where  the  insured,  on  applying  for  insurance  upon  a  building  against  fire,  promised 
the  underwriters  verbally  that  if  they  accepted  the  risk  he  would  discontinue  the 
use  of  a  fire-place  in  the  basement,  and  use  a  stove  instead  thereof;  but,  after 
obtaining  the  policy,  omitted  to  perform  his  promise,  in  consequence  of  which 
the  building  was  burned  :  Held,  no  defence  to  an  action  on  the  policy. 

The  term  representation,  when  used  in  reference  to  insurance  contracts,  imports 
an  affirmation  on  the  part  of  the  insured  of  some  past  or  existing  fact,  material 
to  the  risk ;  not  a  statement  as  to  matters  resting  merely  in  intention  or  expecta- 
tion. Per  WALWORTH,  chancellor. 

The  case  of  Denniston  v.  Lillie,  (3  Bligh's  Rep.  202,)  commented  on  and  doubted. 
Per  WALWORTH,  chancellor. 

A  representation  in  the  nature  of  a  promise  or  stipulation  for  future  conduct  on  the 
part  of  the  insured,  must,  in  general,  be  inserted  in  the  policy,  or  the  underwriter! 
cannot  avail  themselves  of  it  Per  WALWORTH,  chancellor,  and  BOCKXK, 
senator. 

VOL.  IV.  42 


330  CASES  IN  THE  COURT  OF  ERRORS. 

Alston  v.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

Parol  evidence  of  what  passed  between  the  insured  and  underwriters  at  and  previ- 
ous to  the  delivery  of  the  policy,  is  not  admissible  for  the  purpose  of  adding  to  or 
varying  its  terms.  Per  WAIAVORTH,  chancellor,  and  BOCKEE,  senator. 

The  general  nature  and  effect  of  a  misrepresentation,  properly  so  called,  adverted 
to  and  considered.  Per  WALWORTH,  chancellor. 


ERROR  to  the  supreme  court.  The  action  in  the  court  below 
was  upon  a  fire-policy  on  a  building  and  some  personal  prop- 
erty belonging  to  the  plaintiff,  which  bore  date  August  27th, 
1838.  The  term  of  insurance  was  five  years,  commencing  at 
the  date  of  the  policy.  In  the  policy,  the  building  was  describ- 
ed as  a  brick  dwelling-house  and  shop  ;  and,  after  setting  forth 
the  size  of  the  building  and  its  height  above  the  basement,  the 
policy  added — "which  basement  is  privileged  as  a  cabinet- 
maker's shop."  The  personal  property  covered  by  the  policy 
consisted  of  "  stock  in  trade  in  the  cabinet  business,"  house- 
hold furniture,  wearing  apparel  and  family  stores.  Among 
other  conditions  contained  in  the  policy  was  this  :  "  If  the  said 
David  Alston  [the  plaintiff]  shall  make  any  misrepresentation 
or  concealment,  or  if  such  building  or  premises  shall  be  occu- 
pied in  any  way  so  as  'to  render  the  risk  more  hazardous  than 
at  the  time  of  insuring,  this  policy  shall  be  void  and  of  no 
effect."  After  issue  joined  in  the  court  below  the  cause  was 
referred. 

On  the  hearing,  the  plaintiff  gave  in  evidence  the  policy,  the 
preliminary  proofs  of  loss,  &c.  and  then  called  one  Pratt,  who 
testified  as  follows,  viz.  :  Witness  knows  the  building  describ- 
ed in  the  policy  ;  it  was  burned  down  the  last  of  August,  1838  ; 
plaintiff  occupied  the  house,  and  had  for  some  time  occupied  it 
as  his  own.  It  was  totally  destroyed  except  the  brick.  Wit- 
ness made  out  an  estimate  of  the  cost  of  the  house,  and  it 
amounted  to  $1781,  &c.  Plaintiff  is  a  cabinet-maker  and  had 
tools,  stock  in  trade,  &c.  His  shop  was  in  the  basement  of  the 
building.  The  witness  further  testified,  on  cross-examination, 
that  he  lived  near  the  house  and  saw  the  fire.  The  first  he 
saw  of  it,  it  appeared  to  be  in  the  basement — i.  e.  in  the  shop. 
This  was  between  nine  and  ten  o'clock  in  the  evening.  A  fire 


ALBANY,  DECEMBER,  1842.  331 

Alston  r.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

was  kept  in  the  shop,  sometimes  in  the  fire-place  and  some- 
times in  the  furnace — a  portable  furnace  for  cooking  and  heat- 
ing glue. 

The  defendants  then  called  Lyman  Garfield,  their  secretary, 
who  testified  to  the  following  facts :  On  the  27th  of  August, 
1838,  the  plaintiff  called  on  the  witness  for  the  policy  of  in- 
surance, the  application  for  it  having  been  sent  in  sometime 
previously.  Witness  told  the  plaintiff  the  company  had  con- 
cluded not  to  accept  the  proposals  ;  adding,  that  he  [the  wit- 
ness] understood  the  plaintiff  was  using  a  fire  in  the  fire-place 
of  the  cabinet-maker's  shop  [the  basement  story  of  the  build- 
ing] and  that  the  house  had  before  taken  fire  from  that  cause. 
The  plaintiff  enquired  where  the  president  of  the  company 
[Mr.  Starbuck,]  resided.  Witness  informed  him  ;  whereupon 
the  plaintiff  left,  and  in  about  half  an  hour  returned  with  the 
president.  Some  conversation  then  ensued,  and  the  plaintiff 
finally  said  :  "  I  will  abandon  the  use  of  the  fire-place ;  1  have 
got  a  stove  and  will  use  that."  Witness  understood  him  he 
had  a  stove  in  the  basement.  Upon  this  statement,  we  agreed 
to  give  him  the  policy,  and  did  give  it  to  him. 

Mr.  Starbuck,  the  president,  was  then  called  by  the  defen- 
dants and  gave  a  more  full  statement  of  the  conversation  at 
the  time  alluded  to  by  Garfield.  He  testified,  among  other 
things,  that  after  the  plaintiff  was  informed  of  the  company's 
unwillingness  to  accept  the  risk,  the  plaintiff  said  :  "  Suppose 
I  should  abandon  the  fire-place  in  the  basement,  would  you 
then  take  it  ?"  Witness  thereupon  consulted  with  the  secreta- 
ry, and  then  spoke  to  the  plaintiff,  who  said  he  would  abandon 
the  fire-place  in  the  basemertt  altogether ;  that  he  would  not 
use  it  himself  nor  suffer  any  other  person  to  use  it,  but  would 
use  a  stove  which  he  had.  Witness  and  Mr.  Garfield  then  told 
the  plaintiff  if  he  would  do  that,  they  would  take  the  risk, 
and  it  was  taken  accordingly.  The  building  burned  up  two  or 
three  days  afterwards.  The  using  of  a  fire-place  in  the  base- 
ment, instead  of  a  stove,  was  material  to  the  risk. 

The  above  testimony  of  Garfield  and  Starbuck  was  objected 


332  CASES  IN  THE  COURT  OF  ERRORS. 

Alston  v.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

to  by  the  counsel  for  the  plaintiff  in  due  season  ;  but  the  ref- 
erees were  of  opinion  that  it  was  admissible,  and  therefore 
overruled  the  objection. 

It  appeared  from  other  evidence  given,  that  the  plaintiff  used 
the  fire-place  in  the  basement,  for  the  purpose  of  cooking,  the 
next  day  after  the  policy  was  delivered.  His  affidavit  forming 
a  part  of  the  preliminary  proofs  of  loss  contained  this  clause  : 
"  I  occupied  at  the  time  [of  the  fire]  the  basement  or  lower 
rooms  [of  the  building]  as  a  cabinet-maker's  shop,  for  the. 
manufacturing  of  furniture,  and  believe,  according  to  the  best 
of  my  knowledge,  that  the  fire  originated  in  the  last  mentioned 
basement  rooms,  where  I  was  at  work  late  at  night  varnishing 
furniture,  a  fire  being  on  the  hearth  at  the  time  for  that  pur 
pose,"  &c. 

The  referees  reported  in  favor  of  the  defendants,  and  the 
plaintiff  afterwards  moved  the  court  below  to  set  aside  the  re- 
port, but  the  motion  was  denied.  A  report  of  the  case  in  that 
court,  together  with  the  opinion  there  delivered  on  denying  the 
motion,  will  be  found  in  I  Hill,  510  et  seq.  After  judgment,  the 
plaintiff  sued  out  a  writ  of  error.  V 

E.  C.  Litchfield  fy  Ji.  Taber,  for  the  plaintiff  in  error,  insisted 
that  the  referees  er-red  in  admitting  the  testimony  of  Garfield 
and  Starbuck,  as  to  the  conversations  which  passed  previous  to 
and  at  the  time  of  executing  the  policy.  They  cited  and  com- 
mented on  the  following  authorities :  1  Phil.  Ev.  547,  1th 
Lond.  ed.;  Cowen  fyHUVs  Notes  to  Phil.  Ev.  1384  et  seq.;  id. 
1467  et  seq.;  Greenl.  Ev.  315,  316  ;  Stackpole  v.  Arnold,  (11 
Mass.  Rep.  27;)  Atwood  v.  CoW,  (16  Pick.  231  ;)  Swick  v. 
Sears,  (1  Hill,  17  ;)  Pawson  v.  Watson,  (Doug.  785  ;)  Wes- 
tonv.  Ernes,  (1  Taunt.  115  ;)  Kainesv.  Knightly,  (Skin.  54;) 
Vandervoort  v.  Columbian  Ins.  Co.,  (2  Cain.  Rep.  155,  161 ;) 
Park  on  Ins.  264,  Lond.  ed.  of  1809  ;  Hughes  on  Ins.  261,  Am. 
ed.  of  1833;  Livingston  Sf  Crilchristv.  The  Maryland  Ins.  Co., 
(7  Cranch,  536 ;)  2  Marsh,  on  Ins.  450,  Am.  ed.  of  1810  ; 
1  Phil,  on  Ins.  214,  346,  7,  2d  ed.;  Pawson  v.  Barnevelt, 


ALBANY,  DECEMBER,  1842.  333 


Alston  c.  The  Mechanics'  Mutual  Insurance  Company  of  Troy« 


(Doug.  12,  n.;)  Jefferson  Ins.  Co.  v.  Cotheal,  (7  Wend.  80;)  1 
Marsh,  on  Ins.  346,  Am.  ed.  1810 ;  De  Longuemare  v.  The 
Tradesmen's  Ins.  Co.,  (2  Hall,  589  ;)  1  Phil,  an  Ins.  23,  4,  2d 
ed.  ;  Higginson  v.  Dall,  (13  JWim.  .Rep.  96;)  Loots  v. 
Thatcher,  (15  trf.  431 ;)  2  PAt7.  Et>.  36, 1th  Lond.  ed. ;  JMum- 
ford  v.  Hallett,  (1  Jofoi.  Rep.  439 ;)  CAmo<  v.  Barker,  (2  id. 
351;)  Parfo  v.  The  General  Int.  Jss.  Co.,  (5  Pick.  34;) 
Whitney  v.  Haven,  (13  JWiws.  .Rep.  172  ;)  Bryant  v.  The  Ocean 
Ins.  Co.,  (22  Pi'cfc.  .200  ;)  Bayard  v.  Malcolm,  (1  JoAn.  .Rep. 
461 ;)  Boorman  r.  Johnston,  (12  Wend.  573  ;)  Levy  and  others 
v.  Merrill  and  others,  (4  Greenl.  Rep.  180  ;)  Catlin  v.  7%c 
Springjield  Fire  Ins.  Co.,  (1  Sumn.  Rep.  434.) 

S.  Stevens,  contra,  cited  and  commented  on  Edwards  v.  .Footf- 
ner,  (1  Campb.  530 ;)  and  1  Marsh  on  Ins.  450,  ,/?m.  «<J. 
Q/"  1810. 

WALWORTH,  Chancellor.  The  loss  in  this  case  was  clearly 
covered  by  the  terms  of  the  policy.  Those  terms  unquestion- 
ably embraced  a  loss  by  fire  arising  from  the  use  of  the  base- 
ment of  the  premises  as  a  cabinet-maker's  shop,  which  includ- 
ed the  ordinary  use  of  fire  for  varnishing  and  the  melting  of 
glue.  The  policy  also,  by  implication  at  least,  gives  the  as- 
sured the  right  to  occupy  and  use  the  basement  as  it  was  used 
at  the  time  when  the  insurance  was  made ;  for  it  contains  an 
express  provision  that  if  the  premises  shall  be  occupied  in  any 
way  so  as  to  render  the  risk  more  hazardous  than  at  the  time 
of  insuring,  the  policy  shall  be  void.  And  the  attempt  now 
is  to  prove,  by  parol,  that  the  assured,  at  the  time  this  con- 
tract of  insurance  was  made,  agreed  that  he  would  thereafter 
occupy  this  basement  room  in  such  a  manner  as  to  render  the 
risk  less  hazardous  than  it  was  at  the  date  of  the  policy.  The 
question  then  arises  whether  this  supposed  agreement,  which, 
if  actually  made  and  if  there  has  been  no  misunderstanding 
between  the  parties  as  to  its  nature  and  extent,  was  of  itself  a 
part  of  the  contract  of  insurance  and  should  have  been  insert- 


334  CASES  IN  THE  COURT  OF  ERRORS. 

Alston  v.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

ed  in  the  written  policy,  as  a  condition  or  warranty,  can  be 
converted  into  what  the  defendant's  counsel  calls  a  promissory 
representation  ;  and  thus  avoid  the  policy  on  the  ground 
that  the  assured  has  not  performed  his  part  of  the  agreement, 
when  no  such  agreement  is  either  expressed  or  implied  in  the 
written  policy  which  was  executed  by  the  agents  of  the  insur- 
ance company. 

Marshall,  who  I  admit  is  a  writer  of  very  considerable  au- 
thority on  the  law  of  insurance,  does  indeed  speak  of  two  dif- 
ferent kinds  of  representation,  one  of  which  he  calls  an  affirma- 
tive and  the  other  a  promissory  representation .  But  I  have 
not  been  able  to  find  any  case  in  which  a  count  has  adopted 
this  distinction.  And  the  only  other  writer  on  the  law  of  in- 
surance, who  appears  to  have  considered  a  representation  as  a 
contract  between  the  parties,  is  Ellis.  He  says  "  a  represen- 
tation in  insurance  is  in  the  nature  of  a  collateral  contract." 
(Ellis'  Law  of  Fire  and  Life  Ins.  29.)  I  have  examined  Mil- 
lar, Weskett,  Annesley,  Hughes,  Evans,  Park,  Beaumont,  Phil- 
lips, Emerigon,  Blaney,  Quenault,  Grun  &  Joliat,  Vincens, 
Lafond,  Persil,  Merlin,  Pardessus,  Boulay  Paty,  and  the  w%rks 
of  some  other  English  and  foreign  writers  on  the  subject  of 
marine,  fire  and  life  insurances ;  and  so  far  as  they  say  any 
thing  on  the  subject,  I  find  them  to  concur  in  saying  that  mis- 
representation, in  reference  to  insurance  contracts,  is  a  false 
affirmation  as  to  some  fact,  material  to  the  risk ;  which  afE  r- 
mation  is  made  by  the  assured,  or  his  agent,  either  from  a  mis- 
take as  to  the  fact  represented,  or  with  a  design  to  deceive  the 
insurer. 

Annesley  says,  if  there  be  a  misrepresentation,  it  will  avoid 
the  policy,  as  a  fraud  ;  but  not  as  a  part  of  the  agreement,  as 
in  the  case  of  a  warranty.  And  if  the  representation  is  false 
in  any  material  point,  even  through  mistake,  it  will  avoid  the 
policy ;  because  the  underwriter  has  computed  the  risk  upon 
circumstances  which  did  not  exist.  (Ann.  on  Ins.  124.)  Bla- 
ney says,  it  is  necessary  that  the  contracting  parties  should  have 
equal  knowledge,  or  ignorance,  of  every  material  fact  or  cir- 


ALBANY,  DECEMBER,  1842.  335 

Alston  v.  The  Mechanics'  Mutual  Insurance  Company  of  Troy, 

cumstance  which  may  or  can  affect  the  insurance.     And  if  on 
either  side  there  is  any  misrepresentation,  allegatio  falsi,  or 
suppressio  verij  which  would  in  any  degree  affect  the  amount 
of  the  premium  or  the  terms  of  the  engagement,  the  contract 
will  be  deemed  fraudulent  and  absolutely  void.     (Blan.  on 
Life  Jtssurancey  59.)     Evans  states  the  difference  between  a 
representation  and  a  warranty  to  be,  that  the  one  induces  an 
error  in  regard  to  the  subject  of  the  contract,  and  the  other  is 
a  stipulation  of  the  contract  itself.     And  he  divides  represen 
tations  into   but  two   classes — those  which  are   intentionally- 
false,  and  misrepresentations  through  mistake.     (Events'  Law 
of  Ins.  58,  64.)     Hughes  speaks  of  a  representation  as  the  as- 
sertion of  a  material  fact  which  the  insured  knows  to  be  false, 
or  which  he  makes  in' an  unqualified  manner  without  knowing 
whether  it  is  true  or  not.     (Hughes'  Law  of  Ins.  345.)     Phil- 
lips, an  American  writer,  whose  treatise  on  the  law  of  insur- 
ance stands  deservedly  high,  says,  a  representation  is  a  material 
fact  stated  before  completing  the  contract ;  and  a  misrepresen- 
tation is  the  statement  of  such  a  fact  which  turns,  out  not  to  be 
true,     (1  Phil,  on  Ins.  90.)     And  Mr.  Justice  Park,  lately 
one  of  the  English  judges,  a  recent  edition  of  whose  valuable 
work  on  marine  insurances  and  insurances  oh  lives,  and  against 
fire,  has  been  published  by  Barrister  Hildyard,  places  misrepre- 
sentations under  the  head  of  frauds  in  policies.     He  divides 
them  into  two  classes — representations  intentionally  false,  and 
the  misstatement  of  a  material  fact  by  mistake.     And  he  de- 
fines a  representation  to  be  a  state  of  the  case  •  not  a  part  of 
the  written  instrument,  but  collateral  to  it  and  entirely  inde- 
pendent of  it.     He  also  says,  if  there  be  a  misrepresentation,  it 
will  avoid  the  policy  as  a  fraud,  but  not  as  a  part  of  the  agree- 
ment.    (1  Park  on  Ins.  8  Lond.  ed.  404,  433;   see  also  Que- 
nault   Des  Assur.    Terrestres,  289,  JVo.   374,  375  j    Persil 
Traite  Des  rfssur.   Terr.  297,  JVb.  210,  211  ;  Grnn  fy  Joliat 
Des  Assur.   Terr.  260,  JVb.  208 ;   and  2  Boulay  Paty  Cours 
De  Droit  Commercial  Maritime,  87,  tit.  10,  §  14.)     Chancel- 
lor Kent  also,  in   his  brief  notice  of  contracts  of  insurance, 


336  CASES  IN  THE  COURT  OF  ERRORS. 

Alston  v.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

speaks  of  iwo  kinds  of  misrepresentations  only  ;  those  which 
are  intentional  and  avoid  the  contract  for  actual  fraud  on  the 
part  of  the  assured  or  his  agents  ;  and  those  which  arise  from 
mistake  or  oversight,  which  do  not  affect  the  policy  unless  they 
are  untrue  in  substance  and  are  material  to  the  risk.  (3  Kent's 
Com.  283.)  It  is  hardly  possible  to  suppose  that  if  there  was 
such  a  term  known  to  the  law  of  insurance  as  a  promissory 
representation^  rendering  the  contract  void  for  the  non-per- 
formance of  a  stipulation  in  the  nature  of  a  collateral  execu- 
tory agreement,  which  the  parties  did  not  think  proper  to 
make  a  part  of  the  written  contract,  it  would  have  been  passed 
over  in  silence  by  all  the  writers  I  have  referred  to. 

Nor  do  I  find  any  such  thing  as  a  promissory  representation 
mentioned  in  the  decisions  of  the  courts.  On  the  contrary, 
Lord  Mansfield,  who  may  be  called  the  father  of  the  present 
system  of  commercial  law  in  England,  clearly  repudiates  the 
idea  of  a  representation  being  promissory.  For  in  the  case  of 
Size  v.  Fletcher,  referred  to  in  Douglass,  but  more  fully  stated 
by  Mr.  Justice  Park,  (1  Park  on  Ins.  441,)  he  told  the  jury 
that  there  was  an  essential  difference  between  a  warranty  and 
a  representation.  That  a  warranty  was  a  part  of  the  contract, 
and  a  risk  described  in  the  policy  was  part  of  the  contract ; 
but  there  could  be  no  warranty  by  any  collateral  representa- 
tion. He  .said  the  ground  on  which  a  representation  affects 
a  policy  is  fraud  j  the  representation  must  be  fraudulent ;  that 
is.,  h  must  be  false  and  material  in  respect  to  the  risk  to  be 
run.  All  risks  are  governed  by  the  nature  of  them,  and  the 
premium  is  governed  by  the  risk.  Where  a  representation  ac- 
companies an  instrument,  it  says,  "  I  will  have  this  understood 
as  my  present  intention^  but  I  will  have  it  in  my  power  to  vary 
it."  His  language  in  this  case  is  certainly  inconsistent  with 
the  supposition  that  a  declaration  as  to  any*  future  event  was 
in  any  way  promissory,  or  any  thing  more  than  a  declaration 
of  a  present  intention  j  which  intention  the  assured  would  have 
the  right  to  alter,  according  to  circumstances,  if  the  under- 
writer did  not  think  proper  to  make  it  a  part  of  the  contract 


ALBANY,  DECEMBER,  1842.  337 

Alston  t.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

of  insurance  by  inserting  it  in  the  written  policy  as  a  condition 
precedent  to  his  liability. 

It  must  be  recollected  too,  that  in  the  case  referred  to,  Lord 
Mansfield  was  speaking  in  reference  to  a  written  representation, 
absolute  in  its  terms,  but  relating  to  events  which  were  to 
occur  after  the  making  of  the  policy.  For  the  vessel,  at  the 
time  of  the  insurance,  was  in  port,  and  was  insured  upon  a 
trading  voyage  from  L'Orient  to  the  Isles  of  France,  and  any 
port  or  places  in  the  East  Indies,  China,  Persia,  or  elsewhere 
beyond  the  Cape  of  Good  Hope,  and  until  her  return  to  her 
port  of  discharge  in  France ;  and  the  written  representation 
was  as  follows :  "  Intends  to  sail  in  September  or  October 
next.  Is  to  go  to  Madeira,  the  Isles  of  France,  Pondicherry, 
China,  the  Isles  of  France,  and  L'Orient."  But  she  did  not  in 
fact  sail  until  the  6th  of  December.  And  instead  of  proceed- 
ing to  China,  from  Pondicherry,  she  went  from  thence  to  Ben- 
gal, and  passed  the  winter  there.  She  then  returned  to  Pon- 
dicherry and  took  in  her  homeward  cargo,  and  was  on  her  way 
to  her  port  of  discharge,  in  France,  when  she  was  captured  by 
a  privateer.  If  the  written  representation  therefore  could  be 
considered  as  promissory,  or  in  the  language  of  Ellis,  "  in  the 
nature  of  a  collateral  contract?  the  promise  was  not  complied 
with  either  as  to  the  time  of  sailing  or  as  to  the  course  of  the 
voyage. 

The  effect  of  the  representation  is  necessarily  different  where 
it  assumes  the  form  of  an  absolute  affirmation  of  an  existing  fact 
or  of  a  past  event ;  unless  from  the  very  nature  of  the  repre- 
sentation it  is  impossible  for  the  underwriter  to  understand  it 
in  any  other  way  than  as  a  matter  of  opinion  merely.  Thus  in 
the  case  of  Macdowell  v.  Fraser,  (1  Doug.  Rep.  260,)  where 
the  broker  represented,  without  explanation,  that  the  vessel  was 
seen  safe  in  the  Delaware  on  the  llth  of  December,  when  in 
fact  she  was  lost  two  days  before  that  time,  the  misrepresenta- 
tion was  held  to  avoid  the  policy.  No  evidence  was  given,  in 
that  case,  to  show  how  the  false  representation  occurred.  But 
upon  the  motion  for  a  new  trial  it  was  stated  that  the  error 

VOL.  IV.  43 


338  CASES  IN  THE  COURT  OF  ERRORS. 

Alston  t.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

arose  from  a  mistake  of  the  master  of  another  vessel,  in  refer- 
ence to  the  time  when  the  lost  ship  left  New- York ;  which  led 
the  assured  to  make^  mistaken  computation.  And  the  court 
very  plainly  intimate  that  if  all  the  facts  in  the  case  had  been 
communicated  to  the  underwriter,  to  enable  him  to  make  his 
own  calculation  of  the  probable  safety  of  the  vessel  on  the 
given  day,  and  he  had  then  chosen  to  insure  without  requiring 
a  warranty  as  to  that  matter,  the  result  might  have  been  differ- 
ent. So  in  the  case  of  Curell  v.  The  Mississippi  Marine  $• 
Fire  Insurance  Company,  (9  Louis.  Rep.  163,)  the  representa- 
tion was  that  the  ship  had  sailed  on  a  particular  day,  when  in 
fact  she  had  sailed  twelve  days  before ;  so  as  to  make  her  out 
of  time  at  the  date  of  the  policy.  And  the  court  very  properly 
held  that  such  a  misrepresentation  avoided  the  policy.  The 
case  of  Denniston  v.  IMlie,  upon  an  appeal  from  Scotland,  (3 
Blights  Rep.  202,)  is  of  a  more  doubtful  character ;  and  it  is 
evident  Lord  Eldon  was  not  perfectly  satisfied  with  his  own 
decision  in  that  case,  as  he  attempted  to  invite  a  re-argument. 
Not  that  the  representation  there  related  to  something  that  was 
to  take  place  after  the  making  of  the  policy — for  the  vessel  had 
been  captured  more  than  a  month  before  that  time — but  because 
the  representation  was  not  in  fact  made  at  the  time  when  the 
insurance  was  effected.  For  the  underwriters  were  only  shown 
a  letter,  written  a  long  time  before  the  vessel  sailed,  stating 
that  she  would  sail  on  a  particular  day.  His  lordship  stated 
the  question  to  be,  whether  it  was  a  misrepresentation  of  an  ex- 
pectation, or  a  statement  as  to  a  past  fact  which  was  material  to 
the  risk.  He  came  to  the  conclusion  that  it  was  the  latter ; 
in  which  conclusion,  with  due  deference,  I  think  he  was  clearly 
wrong.  For  when  the  letter  of  Duff  &  Co.,  which  the  under- 
writer must  have  seen  was  dated  on  the  2d  of  April,  stated 
that  the  vessel  would  sail  on  the  1st  of  May,  he  could  not  have 
supposed  they  intended  to  do  any  thing  more  than  to  express 
an  opinion  or  an  expectation  that  the  vessel  would  sail  at  that 
time  And  if  he  considered  the  day  of  sailing  material  to  the 
risk,  he  should  have  inserted  it  in  the  policy  as  a  part  of  the 


ALBANY,  DECEMBER,  1842. 


Alston  v.  Hie  Mechanics'  Mutual  Insurance  Company  of  Troy. 

agreement,  instead  of  relying  upon  it  as  the  statement  of  a  fact. 
The  case  would  have  been  entirely  different  if  the  person  who 
applied  for  the  insurance  had  stated,  witnout  explanation,  that 
the  vessel  had  not  sailed  previous  to  the  first  of  May,  when  she 
had  in  fact  sailed  eight  days  before.  For  it  was  possible  for 
the  agent  to  have  heard  that  she  was  at  New-Providence  as  late 
as  the  first  of  May,  by  a  vessel  coming  direct  from  that  island 
with  a  fair  wind.  In  the  case  of  Baxter  V.  The  New-England 
Insurance  Company,  (3  Mass.  Rep.  96,)  the  insurers  were  in- 
formed that  the  mastcr.of  the  James  stated,  that  when  he  sailed, 
the  Robert  was  not  to  sail  till  four  days  afterwards,  when  in 
fact  she  had  sailed  four  days  previous  to  the  James.  And  no 
evidence  appears  to  have  been  introduced  in  that  case  to  show 
that  there  was  any  truth  in  this  statement  that  the  master  of 
the  James  was  the  author  of  the  misrepresentation.  The  state- 
ment that  she  had  not  sailed  at  the  particular  date  was,  there- 
fore, a  misrepresentation  of  a  past  fact,  material  to  the  risk  as 
the  proof  showed,  and  rendered  the  policy  void.  But  in  the 
case  of  Rice  v.  The  New  England  Marine  Insurance  Company, 
(4  Pick.  Rep.  439,)  upon  an  insurance  on  the  same  risk, 
proof  being  introduced  that  the  master  of  the  James  did  in  fact 
give  the  information,  as  stated  in  the  letter  upon  which  the  de- 
fendants relied  as  a  misrepresentation,  the  supreme  court  of 
Massachusetts  decided  that  the  insurers  were  not  discharged. 
And,  what  is  more  material  to  the  case  now  under  considera- 
tion, they  held  that  the  letter  of  the  master  of  the  Robert,  stat- 
ing that  he  should  leave  Kingston  on  the  12th  of  August,  was 
not  a  representation  of  a  fact,  but  of  an  expectation  merely  ; 
and  therefore  not  a  misrepresentation  which  would  avoid  the 
policy.  So  in  the  more  recent  case  of  Bryant  v.  The  Ocean 
Insurance  Company,  (22  Pick.  Rep.  200,)  the  present  judges 
of  the  same  court  decided  that  a  statement  made  at  the  time  of 
effecting  the  insurance,  as  to  the  nature  of  the  cargo  which  was 
to  be  thereafter  shipped  on  board  the  vessel,  if  not  fraudulently 
made,  was  not  a  representation  which  would  avoid  the  policy 


340  CASES  IN  THE  COURT  OF  ERRORS. 

Alston  v.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

if  he  afterwards  changed  his  mind  and  took  on  board  a  different 
cargo.  And  in  the  case  of  Allegros  adm?rs  v.  The  Maryland 
Insurance  Company,  (2  Gill  fy  John  Rep.  136,)  where  a  writ- 
ten application  for  insurance  stated,  among  other  things,  "  said 
brig  will  sail  from  La  Plata  in  the  course  of  this  month,"  the 
court  of  appeals  in  Maryland  held  that  this  was  not  a  technical 
representation  of  the  sailing  of  the  vessel,  but  a  statement  of 
the  opinion  or  belief  of  the  applicant  that  she  would  sail  at  that 
time  j  and  therefore  did  not  avoid  the  policy,  although  she  did 
not  in  fact  leave  till  more  than  a  month  afterwards. 

These  cases  therefore  show  that  a  statement  as  to  a  future 
fact  or  event  which  is  in  its  very  nature  contingent,  and  which 
the  insurer  knows  the  party  could  not  have  intended  to  state 
as  a  known  fact,  but  as  an  intention  or  expectation  merely,  if 
honestly  made  and  not  with  an  intent  to  deceive,  is  not  a 
collateral  contract  or  a  promissory  representation  which  the  as- 
sured is  bound  to  see  performed  to  render  his  policy  valid. 
But  if  the  underwriter  considers  the  statement  material  to  the 
risk,  and  is  unwilling  to  insure  at  the  contemplated  premium 
without  binding  the  assured  to  the  performance  of  it  as  a  con- 
dition precedent  to  his  liability,  he  should  make  it  a  part  of 
the  contract  stated  in  the  policy. 

Where  the  assured  acts  in  good  faith  without  any  intent  to 
deceive,  and  without  concealing  or  misstating  any  fact  within 
his  knowledge  which  it  is  essential  to  the  underwriters  to  know, 
to  enable  them  to  judge  of  the  propriety  of  assuming  the  risk 
and  the  amount  of  premium  and  other  conditions  of  the  policy, 
common  justice  requires  that  the  party  who  pays  the  premium 
should  be  informed,  by  the  terms  of  the  written  agreement,  what 
is  the  real  contract  between  him  and  the  underwriters;  and  it 
should  not  be  left  to  the  uncertain  recollection  of  any  one  to 
prove  a  different  agreement  from  that  which  is  contained  in 
the  written  policy.  For  it  frequently  happens  that  where  ne- 
gotiations are  carried  on  between  parties,  and  they  suppose 
they  understand  one  another  as  to  the  terms  of  the  bargain, 
they  find,  when  they  come  to  reduce  their  agreement  to  writing, 


ALBANY,  DECEMBER,  1842.  341 

Alston  B.  The  Mechanics'  Mutual  Insurance  Company  of  Troy 

that  they  do  not  understand  it  alike.  It  is  for  this  reason  that 
parol  proof  is  not  admissible  to  vary  or  alter  the  terms  or  the 
legal  meaning  of  a  written  contract,  by  showing  what  either 
party  said  while  the  negotiation  was  going  on.  Fraud,  mis- 
representation and  deceit  are  necessary  exceptions  to  this 
general  rule  ;  but  there  is  no  good  reason  why  any  thing  which 
is  in  fact  a  part  of  the  contract  between  the  parties,  should  form 
an  exception  to  the  rule  in  an  insurance  case. 

The  case  now  under  consideration,  I  am  inclined  to  think, 
shows  the  importance  of  adhering  rigidly  to  this  rule  in  insu- 
rance cases  as  well  as  others.  For  although  I  have  no  reason 
to  suppose  the  president  and  secretary  of  the  company  have  not 
stated  the  supposed  agreement  in  relation  to  the  use  of  the 
fire-place,  exactly  as  they  understood  it,  I  have  great  doubts 
whether  the  plaintiff  understood  that  he  was  to  be  precluded 
by  that  agreement  from  using  the  fire-place  to  heat  his  glue- 
pot  and  warm  his  varnish  ;  or  that  he  was  to  remove  his  cook- 
ing apparatus  from  the  basement  room  the  instant  the  policy 
was  signed,  without  giving  him  a  reasonable  time  to  put  up  his 
stove  for  cooking  in  another  part  of  the  house.  It  must  be  re- 
collected that  the  conversation  took  place  in  dog-days,  when  a 
stove  was  not  wanted  to  warm  his  shop  ;  but  when  his  family 
were  using  the  fire-place  in  that  room  for  family  purposes. 
He  therefore  most  probably  spoke  in  reference  to  that  use  of 
the  fire-place,  when  he  said  he  would  abandon  the  fire-place  and 
use  his  stove.  And  as  the  president  and  secretary  do  not  them- 
selves agree  in  respect  to  the  words  he  used,  it  is  possible  that 
both  have  misapprehended  what  he  did  in  fact  mean  to  say  on  the 
subject ;  or  he  may  have  inadvertently  used  language  which 
did  not  properly  express  what  he  intended  to  agree  to  on  the 
subject.  That  he  understood  he  was  to  abandon  the  use  of  the 
fire-place  for  cooking,  is  very  probable.  For  it  appears  the 
family  only  cooked  there  until  the  next  day,  when  he  had  prob- 
ably gotten  his  stove  up  in  another  part  of  the  house,  or  had 
made  some  other  provision  for  the  necessary  fire  for  family 
purposes.  And  if  he  thus  discontinued  cooking  in  the  fire- 


342  CASES  IN  THE  COURT  OF  ERRORS. 

Alston  v.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

place  in  good  faith,  immediately  after  he  had  obtained  his  in- 
surance, it  is  hardly  probable  that  he  would  have  used  the  fire- 
place for  the  temporary  purpose  of  varnishing,  if  he  had  under- 
stood that  his  agreement  with  the  officers  of  the  insurance  compa- 
ny extended  so  far  as  to  embrace  such  a  use.  By  the  terms  of 
his  policy,  the  basement  was  privileged  as  a  cabinet-maker's 
shop,  which  of  course  included  the  necessary  use  of  fire  for 
gluing  and  varnishing. 

In  Whitney  v.  Mayer,  (13  Mass.  Rep.  172,)  the  supreme 
court  of  Massachusetts  decided  that  the  underwriter  could  not 
set  up  a  parol  agreement  between  the  parties,  which  was  not 
inserted  in  the  policy,  to  defeat  the  insurance  ;  but  that  if  the 
underwriter  intended  to  avail  himself  of  it,  he  should  have  made 
it  a  part  of  the  written  contract.  A  similar  decision  was  made 
by  Lord  Tenterden  in  Flinn  v.  Tobin,  (1  Mood,  fy  Malk.  Rep. 
369.)  And  in  this  case,  no  one  who  reads  the  testimony  can 
for  a  moment  doubt  that  a  promise  to  abandon  the  fire-place 
and  use  a  stove,  was  an  agreement,  and  not  a  representation  of 
a  fact.  I  think  the  referees  erred,  therefore,  in  receiving  parol 
evidence  of  such  an  agreement  to  defeat  the  policy  ;  and  that 
their  report  should  have  been  set  aside  and  a  venire  de  novo 
awarded. 

The  judgment  of  the  court  below  is  therefore  erroneous, 
and  should  be  reversed. 

BOCKEE,  Senator.  There  is  no  rule  better  settled  than  that 
"  parol  evidence  shall  not  be  admitted  to  contradict,  add  to  or 
vary  the  terms  of  a  written  instrument."  Whether  the  admis- 
sion of  the  testimony  of  Garfield  and  Starbuck  was  a  violation 
of  this  rule,  is  the  only  point  to  be  enquired  into.  If  the  evi- 
dence was  properly  admissible,  or  if  the  stipulation  or  agree- 
ment given  in  evidence  had  been  contained  in  the  policy,  the 
case  would  present  such  a  violation  of  contract  on  the  part  of 
the  plaintiff  in  error  as  would  probably  bar  him  from  a  recove- 
ry. It  is  not  denied  that  a  fraudulent  representation,  material 
to  the  risk,  might  be  proved  by  parol,  and  would  avoid  the  poll- 


ALBANY,  DECEMBER,  1842.  343 

Alston  «.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 

cy.  Fraud  is  an  element  that  vitiates  all  contracts.  A  repre- 
sentation is  of  some  matter  extrinsic  the  contract,  and  gene- 
rally, if  not  always,  relates  to  the  present  state  and  condition 
of  the  subject  insured.  The  proof  shews  that  the  plaintiff  said 
11  he  would  abandon  his  fire-place  in  the  basement  altogether  j 
he  would  not  use  it  himself  or  suffer  any  other  person  to  use  it 
for  any  purpose  whatever,  but  would  use  a  stove  which  he  had." 
It  is  contended  by  the  defendant's  counsel  that  this  is  a  prom- 
missory  representation,  fraudulently  made,  material  to  the  risk, 
and  that  the  non-fulfilment  of  it  precludes  the  plaintiff  from  re- 
covering on  the  policy.  How  such  a  prommissory  representa- 
tion, relating  to  a  thing  which  the  party  is  to  do  in  future,  is  to 
be  distinguished  from  a  contract  or  agreement,  I  am  unable  to 
comprehend.  It  is  a  representation  in  no  other  sense  than 
every  contract,  promise  or  agreement  is  a  representation  that 
the  party  will  do  or  refrain  from  doing  a  particular  thing.  By 
whatever  name  it  is  called,  it  is  neither  more  nor  less  than  an 
engagement  that  fire  should  not  be  used  in  the  basement  fire- 
place. If  this  had  been  contained  in  the  policy,  it  would  have 
been  a  warranty,  binding  upon  the  plaintiff.  Being  out  of  the 
policy,  it  is  no  more  than  conversation  between  the  parties, 
inadmissible  as  evidence  of  their  rights  under  this  written  con- 
tract. If  it  was  material  to  the  risk,  it  was  material  that  it 
should  be  inserted  in  the  policy,  or  at  least  that  the  evidence 
of  it  should  be  in  writing.  It  was  essentially  a  part  of  the  con- 
tract— a  stipulation  by  the  plaintiff  adding  to  and  varying  the 
terms  of  the  policy.  It  can  hardly  be  said  that  a  contract  is 
both  written  and  verbal.  To  admit  parol  evidence  in  this  case, 
would  be  breaking  down  a  salutary  and  established  rule  j  and 
there  would  be  no  longer  any  security  in  written  contracts.  In 
the  case  of  Size  v.  Fletcher,  (Douglas,  284,)  cited  by  the  court 
below,  the  question  was  not  on  the  admissibility  of  parol  evi- 
dence of  a  prommissory  representation,  but  whether  a  writing 
annexed  to  the  policy  was  to  be  considered  a  part  of  the  contract, 
and  therefore  a  warranty  to  be  strictly  performed  ;  or  whether  it 
was  to  be  taken  as  a  representation,  collateral  to  and  out  of  the 


344       CASES  IN  THE  COURT  OF  ERRORS. 

Alston  0.  The  Mechanics'  Mutual  Insurance  Company  of  Troy. 


policy.  So  in  the  case  of  Edwards  v.  Footner,  (I  Camp.  530,) 
where  a  ship  was  to  sail  with  a  certain  number  of  guns  and  men, 
the  question  was  whether  a  written  memorandum  not  attached  to 
the  policy  was  to  be  considered  a  warranty,  or  a  representation. 
The  precise  question  before  this  court  is  not  whether  a  prom- 
missory  representation  may  exist,  but  whether  parol  evidence 
of  such  representation  can  be  given,  where,  if  the  representation 
was  included  in  the  policy,  it  would  be  a  warranty,  and  where 
the  effect  of  the  evidence  will  be  to  add  to  and  vary  the  written 
contract  between  the  parties.  On  this  question,  perhaps  no  de- 
cision can  be  found  in  the  books  exactly  in  point,  for  the  reason 
that  the  rule  applicable  to  the  case  is  one  of  the  most  ancient 
landmarks  of  the  law  of  evidence  and  has  never  been  question- 
ed or  disturbed.  The  policy  of  insurance  was  the  highest  evi- 
dence of  the  contract  between  these  parties,  and  parol  evidence 
to  shew  the  contract  variant  from  what  appears  by  its  terms  in 
writing,  would  be  productive  of  dangerous  consequences  and 
was  improperly  received.  The  decision  of  the  court  below 
ought  to  be  reversed. 

The  PRESIDENT,  and  Senators  DICKINSON  and  HOPKINS  de- 
livered oral  opinions  in  favor  of  reversing  the  judgment  of  the 
court  below. 

All  the  members  of  the  court,  nineteen  being  present,  con- 
curring in  this  result,  the  judgment  was  unanimously  BEVERSED. 


ALBANY,  DECEMBER,  1842.  345 


Hunt  r.  Amidon. 


HUNT  vs.  AMIDON. 

A.  sold  certain  lands  to  W.,  who  gave  back  a  bond  and  mortgage,  which  the 
former  assigned  to  one  T. ;  and  afterward,  W.  re-conveyed  to  A.,  taking  from 
him  an  indemnity  against  the  bond.  A.  then  conveyed  the  lands  to  B.,  core, 
nanting  for  quiet  enjoyment ;  and  B.  conveyed  them  to  H.  by  a  quit-claim  deed. 
T.  thereupon  proceeded  to  a  foreclosure  of  the  mortgage  in  chancery,  and,  on 
the  sale,  H.  became  the  purchaser.  Held,  that  H.  might  recover  against  A.  the 
purchase  money  paid  on  the  mortgage  sale,  in  an  action  of  assumpsit  as  for 
money  paid  &c.  to  A.'s  use. 

A  verbal  promise  by  a  grantor,  made  contemporaneously  with  the  execution  of  a  deed 
containing  a  covenant  for  quiet  enjoyment,  that  he  would  pay  off  an  existing  in- 
cumbrance  upon  the  premises,  is  merged  in  the  deed,  and  cannot  be  enforced. 
Per  WALWORTH,  chancellor. 

A  covenant  for  quiet  enjoyment  runs  with  the  land,  and  passes  by  a  quit-claim 
deed  to  a  purchaser  from  the  grantee.  Per  WALWORTH,  chancellor. 

One  in  possession  of  land  under  a  deed  containing  a  covenant  for  quiet  enjoyment, 
has  no  right  to  give  up  the  land  voluntarily  to  a  stranger  claiming  by  title  para- 
mount,  or  even  to  pay  off  an  alleged  mcumbrance  without  suit,  and  then  resort 
to  an  action  upon  the  covenant  Per  WALWORTH,  chancellor. 

In  the  present  case,  however,  the  decree  of  foreclosure,  and  the  sale  under  it,  amount- 
ed, in  equity,  to  an  eviction  ;  and  the  money  paid  by  the  plaintiff  at  the  sale  should 
be  regarded  as  a  payment  by  coercion  of  legal  process,  for  the  use  and  benefit  of 
the  defendant.  Per  WALWORTH,  chancellor. 

Where  one  standing  in  the  situation  of  a  surety,  whether  he  became  so  by  actual 
contract  or  by  operation  of  law,  is  compelled  to  pay  the  debt  which  his  principal 
in  equity  and  justice  ought  to  have  paid,  the  latter  is  liable  for  the  amount  in  an 
action  for  money  paid  &c.  to  his  use.  Per  WALWORTH,  chancellor. 

ON  error  from  the  supreme  court,  where  Hunt  sued  Amidon 
in  assumpsit  for  money  paid  to  Amidon's  use.  After  verdict 
for  the  plaintiff,  the  supreme  court,  in  January  term,  1841, 
granted  a  new  trial,  for  the  reasons  reported  in  1  Hill,  148.  On 
the  second  trial,  which  took  place  at  the  Rensselaer  circuit  in 
March  1841,  before  CUSHMAN,  C.  Judge,  the  plaintiff  offered  in 
evidence  the  facts  proved  upon  the  former  trial,  which  are  stated 
in  1  Hill,  147,  8,  and  proposed  to  show,  in  addition,  that,  on  the 
29th  of  March,  1828,  the  defendant  executed  to  Wheeler  a  bond 
in  the  penalty  of  $550,  conditioned  to  indemnify  the  latter 
against  the  bond  he  had  given  to  the  defendant  in  December,  1824. 

VOL.  IV.  44 


346  CASES  IN  THE  COURT  OF  ERRORS. 

Hunt  v.  Amidon. 

The  defendant  objected,  insisting  that  all  the  evidence  offered 
was  inadmissible.  The  circuit  judge  sustained  the  objection, 
and  nonsuited  the  plaintiff,  who  thereupon  excepted.  At  the 
May  term  of  the  supreme  court,  1841,  judgment  was  rendered 
for  the  defendant ;  whereupon  the  plaintiff  sued  out  a  writ  of 
error. 

D.  L.  Seymour  <$•  S.  Stevens,  for  the  plaintiff  in  error. 
D.  Gardner  fy  M.  T.  Reynolds,  for  the  defendant  in  error. 

WAL WORTH,  Chancellor.  It  appears  by  the  report  of  this 
case,  (1  HilPs  Rep.  147,)  that,  upon  the  first  trial,  the  circuit 
judge  admitted  all  or  nearly  all  the  evidence  which  was  objected 
to  and  rejected  on  the  last  trial  ;  and  the  plaintiff  had  a  verdict, 
which  was  set  aside  by  the  supreme  court.  The  decision  stated 
in  this  bill  of  exceptions,  was  therefore  made  in  conformity  to 
the  previous  opinion  of  the  supreme  court.  It  presents  two 
questions  for  our  consideration  :  first,  whether  the  judge  was 
right  upon  the  former  trial  in  receiving  parol  evidence  to  show 
that,  at  the  time  of  the  sale  and  conveyance  from  Amidon  to 
Babcock,  there  was  a  verbal  agreement,  in  addition  to  the  writ- 
ten warranty  contained  in  the  deed,  that  Amidon  should  pay 
off  the  mortgage  which  then  belonged  to  Taylor  the  assignee  ; 
and  secondly,  whether  if  such  evidencfe  ought  to  have  been  ex- 
cluded, the  other  facts  proved  on  the  first  trial  were  sufficient 
to  entitle  the  plaintiff  to  a  verdict  upon  the  common  count  for 
money  paid  to  and  for  the  use  of  the  defendant. 

Upon  the  first  question  I  think  the  learned  judge  who  de- 
livered the  opinion  of  the  supreme  court  was  clearly  right  in 
supposing  that  all  verbal  contracts,  made  at  or  before  the  sale, 
must  be  considered  as  merged  in  the  written  contract — the  deed 
of  conveyance  and  the  covenants  contained  therein  for  the  pro- 
tection of  the  title  of  the  grantee.  The  covenant  for  quiet  en- 
joyment itself  shows  that  it  was  the  understanding  of  the  par- 
ties that  Amidon,  the  grantor,  assumed  the  payment  of  all  liens 


ALBANY,  DECEMBER,  1842.  347 

Hunt  c.  Amidon. 

and  incumbrances  upon  the  land,  so  far  as  was  necessary  to 
protect  Babcock,  and  those  who  might  afterwards  become  the 
owners  of  the  premises  or  any  part  of  them  under  him,  in  the 
quiet  enjoyment  of  the  land.  But  the  nature  and  extent  of 
Amidon's  liability  must  depend  upon  the  covenants  in  the  deed 
itself.  Those  covenants  run  with  the  land.  They  passed  to 
the  plaintiff  Hunt,  by  the  quit-claim  deed  to  him  from  Bab- 
cock,  in  October,  1834  ;  so  as  to  give  the  plaintiff  the  same 
rights,  as  against  Amidon,  that  he  would  have  had  if  the  deed 
from  the  latter,  containing  the  covenant  for  quiet  enjoyment, 
had  been  given  directly  to  Hunt  himself.  (Middlemore  \. 
Goodale,  Cro.  Car.  503  ;  Campbell  v.  Lewis,  3  Barn,  fr  Aid. 
392  ;  Spencer's  case,  5  Coke,  16,  Fraser's  ed.  note  a  ;  Shep. 
Touch.  176;  Plait  on  Cov.  523.)  The  fact  that  the  plaintiff 
took  only  a  quit-claim  deed,  left  him  without  any  personal 
claim  against  his  immediate  grantor.  But  his  rights  as  as- 
signee of  Babcock,  upon  the  covenants  in  the  deed  from  Ami- 
don, are  the  same  as  they  would  have  been  if  his  deed  from 
Babcock  had  also  contained  a  similar  covenant  for  quiet  en- 
joyment. 

From  this  view  of  the  case  it  is  perfectly  evident  that  if 
Hunt,  instead  of  purchasing  in  the  premises  himself  under  the 
decree  of  foreclosure,  had  suffered  them  to  be  sold  to  a  third 
person,  and  had  delivered  up  the  possession  to  the  purchaser  as 
directed  by  the  decree  of  foreclosure,  he  could  immediately 
have  brought  an  action  at  law  against  Amidon,  as  assignee  of 
the  covenant  for  quiet  enjoyment  contained  in  the  deed  from 
Amidon  to  Babcock  ;  in  which  action  he  would  have  recover- 
ed the  whole  $1200  mentioned  in  that  deed  as  the  considera- 
tion for  the  premises.  The  defendant,  therefore,  has  been 
clearly  benefitted  by  the  plaintiff's  bidding  in  the  premises 
himself,  at  the  master's  sale,  for  the  $470  which  was  due  upon 
the  decree  for  the  debt  and  costs  on  the  mortgage  foreclosure. 
The  question  then  arises,  whether,  upon  equitable  principles,  the 
plaintiff  was  bound  to  stand  aside  and  'suffer  his  land  to  be 
sacrificed  to  a  stranger  for  this  smaller  sum,  and  then  to  resort 


348  CASES  IN  THE  COURT  OF  ERRORS. 

Hunt  v.  Amidon. 

to  his  action  at  law  upon  the  covenant  in  the  deed  to  Bab- 
cock  j  or  whether  the  decree  of  foreclosure  and  sale,  which 
undoubtedly  contained  the  usual  directions,  as  provided  for  in 
the  135th  rule  of  the  court  of  chancery,  that  the  purchaser 
should  be  let  into  possession  upon  prodi  otion  of  the  master's 
deed,  and  the  actual  sale  under  that  decree,  were  not  of  them- 
selves equivalent,  in  equity  at  least,  to  an  actual  eviction  of 
Hunt  by  an  action  at  law  founded  upon  a  title  paramount  to 
that  which  Amidon  conveyed  to  Babcock  with  warranty. 

It  is  at  least  doubtful  whether  an  action  at  law  could  have 
been  sustained  upon  this  covenant  for  quiet  enjoyment,  with- 
out showing  an  actual  eviction.  And  I  admit  that,  under  such 
a  covenant,  the  grantee  of  the  land  has  no  rigL  to  give  it  up 
voluntarily  to  a  stranger,  who  claims  by  title  paramount,  or 
even  to  pay  off  an  alleged  incumbrance  without  suit,  and 
then  resort  to  his  action  upon  the  covenant  in  the  deed.  But 
it  is  perfectly  clear,  in  this  case,  that  the  plaintiff  stood  in  the 
place  of  a  mere  surety  for  the  amount  due  on  the  mortgage, 
his  land  being  holden  for  the  amount ;  and  that  Amidon,  not 
only  by  the  covenant  in  his  deed,  but  also  by  virtue  of  his  pre- 
vious bond  of  indemnity  to  Wheeler,  was  in  fact  the  real 
debtor.  For,  as  between  Hunt  and  Wheeler,  Hunt,  who  had  de- 
rived title  to  the  land  from  or  through  a  deed  which  was  sub- 
sequent to  the  bond  of  indemnity  to  Wheeler,  could  not,  in 
equity,  have  been  permitted  to  take  an  assignment  of  the  bond 
and  mortgage  from  Taylor,  and  proceed  to  collect  the  money 
from  Wheeler  by  a  suit  on  the  bond.  The  value  of  the  mort- 
gaged premises  being  in  equity  the  primary  fund  for  the  pay- 
ment of  the  debt  at  the  time  of  the  conveyance  from  Amidon 
to  Babcock,  it  was  the  primary  fund  for  that  purpose  as  be- 
tween Wheeler  and  the  plaintiff,  the  owner  of  the  mort- 
gaged premises,  at  the  time  the  decree  of  foreclosure  was  ob- 
tained. 

Again,  it  is  an  equitable  principle  of  very  general  applica- 
tion, that  where  one  person  is  in  the  situation  of  a  mere  surety 


ALBANY,  DECEMBER,  1842.  349 


Hunt  t>.  Anudon. 


for  another,  whether  he  became  so  by  actual  contract  or  by 
operation  of  law,  if  he  is  compelled  to  pay  the  debt  which 
the  other  in  equity  and  justice  ought  to  have  paid,  he  is  enti- 
tled to  relief  against  the  other,  who  was  in  fact  the  principal 
debtor.  And  when  courts  of  law,  a  long  time  since,  fell  in 
love  with  a  part  of  the  jurisdiction  of  the  court  of  chancery, 
and  substituted  the  equitable  remedy  of  an  action  of  assumpsit 
upon  the  common  money  counts,  for  the  more  dilatory  and  ex- 
pensive proceeding  by  a  bill  in  equity  in  certain  cases,  they 
permitted  the  person  thus  standing  in  the  situation  of  surety, 
who  had  been  compelled  to  pay  money  for  the  principal 
debtor,  to  recover  it  back  again  from  the  person  who  ought  to 
have  paid  it,  in  this  equitable  action  of  assumpsit  as  for  money 
paid,  laid  out  and  expended  for  his  use  and  benefit. 

The  case  of  Exall  v.  Partridge  and  others,  (8  T.  R.  308,) 
was  a  case  of  this  description.  There,  the  carriage  of  the 
plaintiff  Exall,  being  left  upon  leasehold  premises,  was  dis- 
trained for  rent  reserved  in  a  lease  to  the  defendants,  which 
rent  they  had  covenanted  with  the  landlord  to  pay ;  and  the  plain- 
tiff had  been  compelled  to  pay  the  rent  to  prevent  his  carriage 
from  being  sold.  In  that  case,  it  will  be  perceived,  there  was  no 
privity  of  contract  between  the  plaintiff  and  the  defendants, 
nor  any  request  that  he  should  pay  the  rent  for  them.  But  by 
the  seizure  of  his  carriage  upon  the  demised  premises,  he  was 
placed  in  the  situation  of  a  surety  for  the  payment  of  the  rent 
which  they,  as  the  real  debtors,  were  in  equity  and  justice 
bound  to  pay ;  and  he  was  allowed  to  recover  the  amount 
thus  paid,  in  the  equitable  action  of  assumpsit  for  money  paid  for 
their  use.  (See  also  Taylor  v.  Zamira,  2  C.  Marsh.  R.  220  ; 
and  Carter  v.  Carter,  2  Moore  $  Payne,  732.)  The  legislature 
of  this  state  has  adopted  the  same  principle,  where  one  person 
is  compelled  to  pay  taxes  to  save  his  land  or  other  property 
from  being  lost,  which  taxes  another  person  ought  in  justice 
and  equity  to  have  paid.  (1  R.  S.  410,  §  73  ;  Id.  419,  §  6.) 

Under  the  peculiar  circumstances  of  this  case,  and  without 
reference  to  the  supposed  parol  agreement  to  pay  off  the  mort- 


350  CASES  IN  THE  COURT  OF  ERRORS. 

Hunt  v.  Araidon. 

gage,  I  think  the  decree  of  foreclosure,  and  the  sale  under  it, 
was  in  equity  an  eviction ;  and  that  the  money  paid  by  the 
plaintiff,  to  save  his  property  from  being  sacrificed,  was  a  pay- 
ment of  money  by  the  coercion  of  legal  process  for  the  use  and 
benefit  of  the  defendant  Amidon.  The  plaintiff  should  there- 
fore have  been  allowed  to  recover  it  back  in  this  equitable  ac- 
tion of  assumpsit  for  money  paid  and  expended  for  his  use. 

The  case  of  McCrea  v.  Purmort,  (16  Wend.  Rep.  460,  5 
Paige's  Rep.  620,  S.  C.,)  shows  that,  upon  a  bill  filed  in  the 
court  of  chancery  to  compel  the  principal  debtor  to  pay  off  the 
mortgage,  and  thus  save  the  property  from  being  sacrificed  un- 
der a  decree  of  foreclosure,  that  court  may  grant  the  appro- 
priate relief.  And  if  so,  I  can  see  no  good  reason  why  the 
plaintiff  Hunt  should  not  be  permitted  to  bid  in  the  property 
himself  under  the  decree  of  foreclosure,  and  then  recover  back 
the  money  thus  paid  in  this  form  of  action — the  amount  being 
much  less  than  Amidon  would  have  been  liable  to  pay,  under 
his  covenant  of  warranty,  if  the  property  had  been  purchased 
by  a  third  person. 

For  these  reasons,  I  shall  vote  to  reverse  the  judgment  of  the 
supreme  court. 

ROOT,  senator,  also  delivered  a  written  opinion  in  favor  of 
reversing  the  judgment  of  the  supreme  court. 

All  the  members  of  the  court,  seventeen  being  present,  con- 
curring in  this  result,  the  judgment  of  the  supreme  court  was 
unanimously  REVERSED. 


ALBANY,  DECEMBER,  1843.  351 


Townsend  ».  Hubbard. 


TOWNSEND  and  others  vs.  HUBBARD  &  ORCUTT. 

A  sealed  instrument,  when  executed  by  one  acting  as  attorney,  must  be  executed  in 
the  name  of  the  principal,  and  purport  to  be  sealed  with  his  seal. 

Accordingly,  where  a  covenant  for  the  sale  and  purchase  of  lands  was  subscribed  on- 
ly  with  the  names  of  B.,  H.  and  O.,  and  commenced  thus :  "  Articles,  &c.  made, 
&c.  between  T.  &c.  by  B.  their  attorney,  of  the  first  part,  and  H.  and  O.  of  the  se- 
cond part,  witncsscth ;"  and  the  concluding  clause  was  thus :  "  In  witness  where- 
of the  said  B.,  as  attorney  of  the  parties  of  the  first  part,  and  the  said  parties  of  the 
second  part,  have  hereunto  set  their  hands  and  seals,"  &c. :  Held,  that  the 
covenant  did  not  purport  to  have  been  executed  by  T.  &c.,  and  that  they  could 
not  maintain  an  action  upon  it 

The  case  of  Magill  v.  Hinsdale,  (6  Conn.  Rep.  464,)  commented  on  and  disap- 
proval. Per  WALWORTH,  chancellor. 

Less  strictness  is  required  where  the  instrument  is  not  under  seal ;  it  being  suffi- 
cient, in  such  case,  if  the  intent  to  bind  the  principal  appear  in  any  part  of  the 
instrument  Per  WALWORTH,  chancellor. 

No  particular  form  of  words  is  necessary  to  be  observed  by  the  attorney,  even  in 
executing  a  sealed  instrument,  proved  the  words  used  import  the  requisite 
facts.  Per  WALWORTH,  chancellor. 

Though  a  deed  be  executed  by  an  attorney  for  several  principals,  it  is  not  necessa- 
ry to  affix  a  separate  seal  for  each,  provided  it  appear  that  the  seal  affixed  was 
intended  to  be  adopted  as  the  seal  of  all.  Semble ;  per  WALWORTU,  chancellor. 

ON  error  from  the  supreme  court.  The  action  in  that  court 
was  covenant,  by  John  Townsend  &  James  McBride,  and 
Gideon  Hawley,  James  King  &  Augustus  James,  trustees  and 
executors  of  William  James,  deceased,  survivors  of  Isaiah  Town- 
send,  deceased,  against  Caleb  Hubbard  and  Darius  A.  Orcutt, 
on  a  sealed  contract  in  these  words  : 

"  Article  of  agreement,  made  the  twenty-fifth  day  of  No- 
vember, in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-five,  between  Isaiah  Townsend  and  John  Townsend 
of  the  city  of  Albany,  James  McBride  of  the  city  of  New-York, 
Gideon  Hawley,  James  King  and  Augustus  James,  trustees 
and  executors  of  William  James  deceased,  also  of  the  city  of 
Albany,  by  Harvey  Baldwin  of  the  village  of  Syracuse,  their 
attorney,  of  the  first  part,  and  Caleb  Hubbard  and  Darius  A. 


352       CASES  IN  THE  COURT  OF  ERRORS. 


Townsend  v.  Hubbard. 


Orcutt,  of  the  second  part,  witnesseth  :  The  said  parties  of  the 
first  part,  for  and  in  consideration  of  the  sum  of  one  dollar  to 
them  in  hand  paid  by  the  said  parties  of  the  second  part,  do  cove- 
nant and  agree  for  themselves,  their  heirs  and  assigns  and  le- 
gal representatives,  to  and  with  the  said  parties  of  the  second 
part,  their  heirs  and  assigns  and  legal  representatives,  to  sell 
and  convey  to  them  the  following  described  piece  or  parcel  of 
land,  to  wit :  being  lots  number  four  and  five  in  block  num- 
ber one  hundred  and  thirty-six,  and  lots  number  two  and  three 
in  block  number  one  hundred  and  forty-five  in  the  village  of 
Syracuse,  according  to  a  survey  by  Calvin  Guiteau,  for  the 
sum  of  four  thousand  and  one  dollars,  one  dollar  of  which  is 
paid  in  hand  as  above  ;  and  on  payment  of  the  remaining  sum  of 
four  thousand  dollars,  with  the  interest  thereon,  at  the  rate  of 
seven  per  cent,  per  annum,  at  the  times  hereinafter  covenated 
to  be  paid,  the  said  Isaiah  Townsend,  John  Townsend  and 
James  McBride,  or  their  legal  representatives,  will  execute  to 
the  said  parties  of  the  second  part,  or  their  legal  representa- 
tives, and  the  said  Gideon  Hawley,  James  King  and  Augustus 
James,  or  their  successors,  will  execute  to  the  said  parties  of 
the  second  part,  or  their  legal  representatives,  a  good  and  suf- 
ficient deed  of  the  same,  with  covenants  of  warrantee  on  the 
part  of  the  said  Isaiah  Townsend,  John  Townsend  and  James 
McBride,  and  with  the  usual  covenants  of  the  said  trustees 
against  their  own  acts  and  deeds  impeaching  the  title  to  the 
premises  in  question,  subject  to  the  conditions  and  exceptions 
contained  in  the  original  patent  of  said  land,  and  to  all  taxes 
assessed  or  charged  thereon  after  this  date.  And  the  said  par- 
ties of  the  second  part,  for  themselves,  their  heirs  and  assigns 
and  legal  representatives,  do  covenant  and  agree  to  and  with 
said  parties  of  the  first  part,  and  their  legal  representatives,  to 
pay  to  them  the  sum  of  four  thousand  dollars  in  three  equal 
payments,  at  two,  four  and  six  years  from  the  date  hereof,  with 
interest  as  aforesaid  on  the  whole  sum,  payable  annually  ;  and 
to  enclose  said  Ipt  within  five  months  from  the  date  hereof  by 
a  good  board  fence.  And  in  default  of  payment  of  principal 
or  interest,  at  the  times  and  in  the  manner  above  specified,  then 


ALBANY,  DECEMBER,  1842.  353 


Townaend  r.  Hubbard. 


and  in  that  case  the  said  parties  of  the  first  part  shall  be  at 
liberty  to  avoid  this  contract  and  re-enter  upon  said  premises 
•without  notice  to  quit,  and  may  sell  the  same  to  any  other  per- 
son ;  and,  in  such  case,  said  parties  of  the  second  part  shall  im- 
mediately give  up  possession  of  said  premises. 

In  witness  whereof,  the  said  Harvey  Baldwin,  as  attorney  of 
the  parties  of  the  first  part,  and  the  said  parties  of  the  second 
part,  have  hereunto  set  their  hands  and  seals  the  day  and  year 
first  above  written. 

HAKVEY  BALDWIN.  [L.  s.] 
CALEB  HUBBARD.  [L.  s.] 
D.  A.  ORCUTT.  [L.  s.]" 

Endorsed — "  I  hereby  countersign  and  approve  the  within  con- 
tract.    In  witness  whereof  I  have  hereunto  set  my 
hand  and  seal  this  25th  day  of  November,  1835. 
ISAIAH  TOWNSEND.       [L.  s.]" 

The  declaration  set  forth  the  agreement  as  having  been  made 
by  the  plaintiffs  and  Isaiah  Townsend  deceased,  by  Harvey  Bald- 
win their  attorney  in  fact,  and  averred,  among  other  things,  that, 
by  the  said  agreement,  the  plaintiffs  agreed  to  sell  &c.  The 
breaches  assigned  were,  the  non-payment  of  interest  for  the  years 
ending  on  the  25th  of  November,  1836, 1837  and  1838,  and  also 
the  non-payment  of  the  first  instalment  of  the  principal.  Af- 
ter craving  oyer  of  the  agreement,  the  defendant  set  it  forth, 
with  the  endorsement  thereon,  and  demurred  to  the  declaration 
specially,  assigning  the  following  causes :  1.  The  declaration 
alleges  that  the  agreement  was  made  by  the  plaintiffs  and 
Isaiah  Townsend  deceased,  by  Harvey  Baldwin  their  attorney 
in  fact,  of  the  first  part,  and  the  defendants  of  the  second  part ; 
whereas,  by  the  oyer  of  said  agreement,  it  appears  that  the 
same  was  made  between  Baldwin  and  the  defendants,  and  that 
the  plaintiffs  and  Isaiah  Townsend  were  not  parties  thereto  : 
2.  The  covenants  of  the  defendants  are  void  for  want  of  conside- 
ration :  3.  The  said  covenants  are  void  for  want  of  mutuality. 
The  plaintiffs  joined  in  demurrer,  and  the  court  below  gave  judg- 

VOL.  IV.  45 


354  CASES  IN  THE  COURT  OF  ERRORS. 

Townsend  v.  Hubbard. 

ment  in  favor  of  the  defendants  for  the  reasons  stated  in  the 
opinion  of  Bronson,  J.  in  the  case  of  Townsend  and  others  v. 
Corning,  reported  in  23  Wend.  435  et  seq.  After  judgment, 
the  plaintiffs  sued  out  a  writ  of  error. 

J.  V.  L.  Pruyn,  for  the  plaintiffs  in  error.  The  agreement 
purports,  on  its  face,  to  have  been  made  between  the  plain- 
tiffs and  Isaiah  Townsend  of  the  one  part,  and  the  defendants 
of  the  other ;  Baldwin  being  described  in  it  as  attorney  of 
the  plaintiffs,  and  not  as  a  party.  The  seal  makes  no  differ- 
ence. The  agreement  is  executory,  for  the  conveyance  of  land 
at  a  future  day,  and  no  seal  was  necessary  to  render  it  valid  or 
obligatory.  (2  R.  S.  135,  $  8,  9.)  It  is  therefore  one  of  those 
unsolemn  instruments,  like  agreements  relating  to  personal 
property,  to  which  the  rule  respecting  deeds  required  to  be  un- 
der seal,  does  not  apply ;  and  it  is  sufficient  that  the  intent  of 
the  parties  appears  to  have  been  to  bind  the  principals,  and  not 
merely  the  agent.  (Com.  Dig.  tit.  Fait,  (B.)  (D.  1;)  id.  tit. 
Attorney )  (C.  14  ;)  Hamm.  on  Parties,  18 ;  Story  on  Jjg.  139 
—146,  §  150—154  j  Bowen  v.  Morris,  2  Taunt.  374  ;  3  Jim. 
Jurist,  78  et  seq. ;  Evans  v.  Wells,  22  Wend.  324,  335,  per 
Walworth,  chancellor ;  id.  339-: — 341,  per  Verplanck,  senator; 
Mauri  v.  Heffernan,  13  John.  R.  58 ;  Rathbon  v.  Budlong,  15 
id.  1 ;  Wilks  v.  Back,  2  East,  142  j  Combes'  case,  9  Co.  75, 
77  j  Frontin  v.  Small,  2  Ld.  Raym.  1418 ;  Anonymous,  Moor. 
70,  pi.  191 ;  Bogart  v.  De  Bussy,  6  John.  R.  94 ;  Pentz  v. 
Stanton,  10  Wend.  271.) 

The  covenants  in  the  agreement  are  independent ;  and,  as 
the  seals  of  the  defendants  import  a  consideration,  they  are 
bound  upon  this  issue,  whether  the  plaintiffs  are  or  not.  (Chit. 
PL  115,  old  ed.,  and  cases  there  cited  ;  Lutw.  305  ;  Com.  Dig. 
tit.  Covenant,  (A.  1)  ;  Livingston  v.  Tremper,  4  John.  R.  416  ; 
Cunningham  v.  Morrell,  10  id.  203 ;  Goodwin  v.  Holbrook,  4 
Wend.  377.)  Again  :  sufficient  mutuality  appears  on  the  face 
of  the  agreement.  The  written  undertaking  of  the  plaintiffs' 
agent  binds  them  to  fulfil  the  obligations  imposed  by  the  agree- 


ALBANY,  DECEMBER,  1842. 


Townsend  t>.  Hubbard. 


ment ;  and  it  is  not  necessary  that  they  should  be  bound  by 
seal.  (Egerton  v.  Mathews,  6  East,  307 ;  Ballard  \.  Walker, 
3  John.  Cos.  60 ;  Roget  v.  Meri-itt,  2  Cat».  117, 120  ;  Mien  v. 
Bennet,  3  Tauntf.  169  ;  Van  Reimsdyk  v.  JSCanc,  1  Gallis.  630  ; 
Clark's  ex'rs  v.  Kan  Riemsdyk,  9  Crunch,  153.) 

Trustees  having  legal  estates  are  as  competent  to  contract  by 
attorney,  as  if  their  title  were  unconnected  with  any  trust. 

Ji.  Taber  <£  &•  Cady,  for  the  defendants  in  error.  The 
agreement  is  inoperative  and  void  for  want  of  mutuality. 
Although  its  terms  import  that  the  plaintiffs  entered  into  cer- 
tain covenants  with  the  defendants,  yet  it  appears  that  neither 
the  iiames  nor  seals  of  the  plaintiffs  were  affixed  to  it.  It  is 
clear  also  that  the  attorney  agreed  to  nothing.  The  contract 
is  therefore  unfinished  and  cannot  be  enforced  by  action.  Again  : 
the  agreement  is  without  consideration.  That  which  might 
otherwise  be  imported  by  the  defendants'  seals,  is  contradicted 
by  the  terms  and  effect  of  the  instrument  itself.  A  seal  to  a 
void  instrument  affords  no  evidence  of  a  consideration.  (Jack- 
son v.  Florence,  16  John.  47  ;  Jackson  v.  Pike,  9  Cowen,  69, 
71,  72,  and  the  cases  there  cited ;  Moor.  70,  pi.  191  j  Combes' 
case,  9  Co.  75,  77;  Frontin  v.  Small,  2  Ld.  Raym.  1418  ; 
Str.105,S.  C.  j  Tovmsend  v.  Corning,  23  Wend.  435,  441, 
and  the  cases  there  cited  j  Bac.  Jlbr.  tit.  Leases  4*c.  (/)  10  j 
Paley  on  Jig.  (by  Lloyd)  153,  154,  181  ;  Story  on  Jg.  137 
et  scq.,  §  147—151 ;  2  Kent's  Com.  631  j  3  Jim.  Jurist,  65— 
86  j  Com.  on  Con.  3.)  The  provisions  of  the  revised  statutes 
which  are  supposed  by  the  plaintiffs  in  error  to  make  the  con- 
tract in  question  an  unsolemn  instrument,  are  as  old  as  the  29M 
Charles  2,  and  were  originally  enacted  to  require  more  (not 
less)  solemnity  in  the  execution  of  such  contracts  than  was 
previously  necessary.  (8  Pick.  Stat.  at  Large,  405,  §  1, 2,  3  ; 
1  Laws  of  JV.  7.  p.  79,  §  10,  Kent  ff  Rod.  ed.  ;  1  R.  L.  of 
1813,  p.  78,  §  10  ;  2  R.  S.  135,  §  8,  9  j  Com.  Land,  tf  Ten. 
54,  55.)  Whether  an  instrument  be  solemn  or  unsolemn,  in  the 
sense  of  the  rule  on  this  subject,  depends  upon  whether  it  is 
sealed  or  not.  A  deed  is  always  a  solemn  instrument,  without 


356       CASES  IN  THE  COURT  OF  ERRORS. 


Townsend  v.  Hubbard. 


reference  to  its  subject  matter.  All  the  contracts  which  have 
been  declared  void  under  the  rule  for  which  we  contend,  were 
such  as  might  have  been  effectually  made  without  seal,  both  at 
common  law  and  under  the  statute  to  prevent  fraudulent  con- 
veyances. 

As  the  agreement  is  not  sealed  by  the  plaintiffs,  they  are 
strangers  to  it  and  cannot  enforce  it  by  action.  (Com.  Dig. 
tit.  Fait,  (C.  2,)  notes  (/c)  and  (/),  Day's  ed.;  Spencer  v.  Field, 
10  Wend.  87,  91,  92  ;  Southampton  v.  Brown,  6  Barn,  # 
Cress.  718.) 

There  is  a  substantial  variance  between  the  agreement  de- 
clared on  and  the  one  of  which  oyer  is  given.  The  declaration, 
describes  the  agreement  as  having  been  made  between  the 
plaintiffs  and  defendants,  whereas  the  oyer  is  of  an  agreement 
between  Baldwin  and  the  defendants.  Again  :  the  covenant 
declared  on  is  one  by  which  the  'plaintiffs  agree  to  sell  land ; 
while  that  produced  on  oyer  is  one  in  which  the  plaintiffs  agree 
to  nothing,  they  not  being  parties  to  it.  (Jeffery  v.  White, 
Doug.  476.) 

It  appears  moreover,  by  the  record,  that  the  plaintiffs,  as  trus- 
tees and  executors,  undertook  to  make  the  agreement  in  question 
ly  attorney,  and  no  power  thus  to  contract  is  alleged.  This  is  a 
fatal  objection  ;  for  trustees  or  executors  cannot  sell  land  by  at- 
torney. (Hawley  v.  James,  5  Paige,  318, 487  ;  1  Sugd.  on  Pow- 
ers, 222,  6th,  Lond.  ed. ;  Berger  v.  Duff,  4  John.  Ch.  368,  369 
and  the  cases  there  cited  j  1  Chit.  PI.  285,  286,  ed.  of  1833.) 

WALWORTH,  Chancellor.  The  question  in  this  case  arises 
upon  a  demurrer  to  a  declaration  in  covenant  upon  a  sealed 
instrument,  stated  in  the.  declaration  to  have  been  an  aoree- 

*  O 

ment  between  the  plaintiffs  and  I.  Townsend  deceased,  by  H. 
Baldwin  their  attorney,  of  the  first  part,  and  the  defendants  of 
the  second  part,  whereby  the  parties  of  the  first  part  agreed  to 
sell  and  convey,  and  the  defendants  agreed  to  purchase  and  pay 
for  certain  lots  at  Syracuse.  As  we  cannot  look  beyond  the 
declaration  for  the  purpose  of  ascertaining  the  real  state  of 


ALBANY,  DECEMBER,  1842.  357 


Townaend  v.  Hubb&rd. 


facts  in  this  case,  we  must,  for  the  purposes  of  the  decision 
which  is  now  to  be  made,  take  it  for  granted  that  Baldwin  was 
duly  authorized  by  the  plaintiffs  and  Isaiah  Townsend,  to  make 
a  contract  for  them  and  in  their  names,  under  seal,  to  sell  and 
convey  the  lands  mentioned  in  the  instrument  declared  on,  so 
as  to  make  a  valid  contract  for  such  sale  under  the  provisions 
of  the  present  statute  of  frauds;  which  statute  requires  the 
contract  to  be  in  writing  and  to  be  subscribed  by  the  parties  by 
whom  the  sale  is  to  be  made,  or  by  their  agent  lawfully  author- 
ized. (2  R.  S.  135,  §  8,  9.)  On  the  other  hand,  we  are  not  to 
inquire  whether,  if  there  has  been  an  imperfect  execution 
of  the  contract  by  the  attorney,  there  has  been  such  an  execu- 
tion thereof  as  to  entitle  the  plaintiff  to  a  specific  performance 
in  equity.  But  the  point  presented  for  our  consideration,  upon 
this  writ  of  error,  is  a  dry  question  of  law,  whether  the  agree- 
ment set  out  in  the  declaration  was  executed  in  such  a  manner 
as  to  authorize  the  plaintiffs  to  recover  thereon  against  the  de- 
fendants, in  this  form  of  action,  as  upon  an  agreement,  under 
seal,  between  the  plaintiffs  and  Isaiah  Townsend  deceased,  and 
these  defendants. 

In  an  agreement  not  under  seal,  executed  by  an  agent  or  attor- 
ney in  behalf  of  his  principal,  and  where  the  agent  or  at- 
torney is  duly  authorized  to  make  the  agreement,  it  is  sufficient, 
as  a  general  rule,  if  it  appears  in  any  part  of  the  instrument 
that  the  understanding  of  the  parties  was  that  the  principal, 
and  not  the  agent  or  attorney,  was  the  person  to  be  bound  for 
the  fulfilment  of  the  contract.  And  even  in  the  case  of  a  seal- 
ed instrument,  executed  by  an  attorney  duly  authorized  by  a 
power  under  seal,  no  particular  form  of  words  is  necessary  to 
render  it  valid  and  binding  upon  the  principal,  provided  it  ap- 
pears upon  the  face  of  the  instrument  that  it  was  intended  to 
be  executed  as  the  deed  of  the  principal,  and  that  the  seal  affix- 
ed to  the  instrument  is  his  seal  and  not  the  seal  of  the  attorney 
or  agent  merely.  (Wilks  v.  Back,  2  East's  Rep.  142.)  And 
where  the  deed  is  executed  for  several  parties,  it  does  not  ap- 
pear to  be  necessary  to  affix  a  separate  and  distinct  seal  for 


358  CASES  IN  THE  COURT  OF  ERRORS. 

Townsend  v.  Hubbard. 

each,  if  it  appears  that  the  seal  affixed  was  intended  to  be 
adopted  as  the  seal  of  each  of  the  parties.  (Perkins,  59,  §  134  j 
Lord  Lovelace's  case.  Sir  Wm.  Jones'  Rep.  268 ;  Ball  v.  Dun- 
sterville,  4  T.  R.  313.)  (a)  But  where  it  distinctly  appears 
from  the  deed  or  instrument  that  the  seal  affixed  thereto  is  the 
seal  of  the  attorney  and  not  o.f  the  principal,  the  latter  cannot 
be  made  liable  in  an  action  of  debt  or  covenant,  as  upon  a  spe- 
cialty ;  nor  will  such  deed  or  instrument  pass  any  title  or  inter- 
est belonging  to  him  which  by  law  requires  a  deed  or  instru- 
ment under  seal  to  transfer  or  discharge  it.  Thus,  in  the  anony- 
mous case  from  Moore,  referred  to  in  the  opinion  of  Justice 
Bronson  i-n  this  case,  where  the  king's  surveyor  was  empower- 
ed by  letters  patent  from  the  crown  to  make  leases  of  certain 
lands  for  him  for  life,  reserving  the  ancient  rents,  and  a  lease 
was  made  by  him  in  the  name  of  the  king  as  the  party  of  the 
first  part,  and  J.  S.  of  the  second  part,  whereby,  as  stated  in  the 
lease,  the  king  demised  the  premises  to  J.  S.  for  life  &c. ;  but 
in  the  in  testimonium  clause,  at  the  close  of  the  instrument,  it 
was  stated  that  the  said  surveyor  had  thereunto  set  his  hand 
and  seal,  the  court  held  the  lease  void,  because  it  was  not  seal- 
ed in  the  name  of  the  king,  but  by  the  surveyor  in  his  own 
name. 

That  case  appears  to  run  on  all  fours  with  the  one  under 
consideration,  so  far  as  regards  the  question  whether  the  in- 
strument declared  on  here  is  to  be  considered  the  deed  of  the 
plaintiffs.  For  the  concluding  clause  of  the  instrument  in 
the  present  case  is,  "In  witness  whereof,  the  said  Harvey 
Baldwin,  as  attorney  for  the  parties  of  the  first  part,  and  the 
said  parties  of  the  second  part,  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written.  Harvey  Bald- 
win. (L.  s.)  Caleb  Hubbard.  (L.  s.)  D.  A.  Orcutt.  (L.  s.") 
And  the  more  recent  case  of  Berkley  v.  Hardy,  in  the  court  of 


(a)  See  SPDilPs  lessee  v.  MDill,  (1  Dull.  Rep.  63,)  Bohanans  v.  Lewis,  (3 
Monroe,  376 ;)  Yarbarough  v.  Monday,  (2  Dev.  Rep.  493  ;)  Stabler  v.  Cowman, 
(7  Gill  4-  John.  284.) 


ALBANY,  DECEMBER,  1842.  359 


Townsend  v.  rlubbard. 


king's  bench  in  England,  (5  Barn.  <f  Cress.  Rep.  355,)  fully 
sustains  the  principle  adopted  in  the  case  from  Moore's  Re- 
ports. For  there  the  plaintiff,  Berkley,  was  not  permitted  to 
recover  against  the  defendant  who  had  signed  and  sealed  the 
lease,  and  had,  in  the  body  of  the  instrument,  covenanted  di- 
rectly and  in  terms  with  Berkley  ;  because  it  appeared  from 
the  face  of  the  instrument  that  Simmonds,  the  attorney  of 
Berkley,  had  sealed  the  lease  in  his  own  name,  instead  of  exe- 
cuting it  in  the  name  of  Berkley,  his  principal. 

The  case  of  Magill  v.  Hinsdale^  (6  Conn.  Rep.  464,)  is  un- 
doubtedly a  decision  in  favor  of  the  position  assumed  by  the 
counsel  for  the  plaintiffs  in  error,  that  this  agreement  was 
properly  executed  as  the  deed  of  the  plaintiffs  and  of  Isaiah 
Townsend  ;  for  it  was  there  held  that  an  instrument  purporting 
that  the  attorney  of  a  corporation  had  set  his  seal  thereto,  in 
behalf  of  the  corporation,  was  sufficient  to  transfer  the  legal 
title  of  the  corporation  in  real  estate,  in  the  same  manner  as 
if  it  had  been  executed  under  the  corporate  seal. (6)  That 
decision,  however,  appears  to  be  in  conflict  with  the  whole 
current  of  authority  both  in  this  country  and  in  England. 
Although  this  rule  of  requiring  sealed  instruments,  when 
executed  by  an  attorney,  to  be  executed  in  the  name  of 
the  principal,  and  to  purport  to  be  sealed  with  his  seal  instead 
of  the  seal  of  the  attorney,  may  be  considered  as  merely  tech- 
nical, yet  it  is  one  upon  which  the  titles  to  many  estates  may 
depend,  and  which  has  been  too  long  established  to  be  now  al- 
tered by  the  courts. 

For  that  reason  I  think  the  demurrer  to  the  declaration  in 


(6)  Where  a  corporation  authorized  its  president  to  execute  a  deed  of  lands  be- 
longing to  the  corporation,  and  he  executed  one,  naming  the  corporation  as  gran, 
tors,  but  attested  it  thus :  "  In  witness  whereof  I,  O.  Spencer,  president,  have 
hereunto  set  my  hand  and  teal,"  &c.,  signing  his  own  name  as  president  opposite 
the  seal,  which  exhibited  no  impression  :  Held,  the  individual  deed  of  the  president, 
and  not  that  of  the  corporation.  (Hatch't  If  nee  v.  Barr,  1  Hamm.  Rep.  390, 
394.) 


360  CASES  IN  THE  COURT  OF  ERRORS. 


Townsend  ».  Hubbard. 


this  case  was  well  taken,  and  that  the  judgment  of  the  supreme 
court  should  be  affirmed. 

RUGER,  Senator.  The  plaintiffs  in  this  cause  declared  on  a 
deed  or  covenant,  of  which  oyer  is  given.  It  would  seem, 
from  the  body  of  the  deed,  or  the  commencement  of  it,  that  the 
plaintiffs  once  contemplated  entering  into  a  covenant  or  agree- 
ment with  the  defendants ;  but  they  never  went  so  far  as  to 
execute  the  instrument.  On  the  contrary,  they  have  left  it 
unfinished  and  defective  ;  wanting,  at  least,  their  names  and 
seals  to  make  the  instrument  valid  in  law. 

It  is  true,  the  instrument  is  executed  by  the  defendants  un- 
der their  seals,  and  under  the  hand  and  seal  of  Baldwin,  who, 
in  the  commencement  of  the  instrument,  purports  to  act  as  the 
attorney  of  the  plaintiffs.  But  he  executes  it  under  his  own 
hand  and  seal,  evidently  without  any  intention  of  binding  him- 
self, and  in  a  way  that  cannot  bind  the  plaintiffs.  The  law 
prescribes  certain  forms  for  the  execution  of  deeds ;  and,  by 
referring  to  authorities  as  the  safe  rule  for  determining  the  va- 
lidity of  the  instrument  declared  on  in  the  present  case,  it  will 
be  seen  that  they  are  with  great  uniformity  opposed  to  its  va- 
lidity. There  is  no  hardship  in  this  case.  The  plaintiffs  re- 
tain their  land  ;  and  certainly  they  ought  not  to  be  allowed  to 
enforce  a  covenant,  which,  by  reason  of  a  failure  to  execute  it 
on  their  part,  is  without  mutuality  or  consideration.  It  is  true, 
Isaiah  Townsend  approved  of  the  instrument,  but  it  was  not 
intended  that  he  should  be  bound  alone,  without  the  other 
plaintiffs  joining  in  the  execution  of  the  instrument ;  and  if  it 
was  binding  upon  him  alone,  the  action  should  have  been 
brought  by  his  legal  representatives  as  the  only  plaintiffs  in  the 
suit. 

In  my  opinion  the  decision  of  the  supreme  court  ought  to 
be  affirmed. 


ALBANY,  DECEMBER,  1842.  35 j 


Townsend  r.  Hubbard. 


DICKINSON,  Senator.  Although  several  points  are  made  in  this 
case  by  both  the  plaintiffs  and  defendants  in  error,  there  seems 
to  be  really  but  one  on  which  the  court  is  called  to  pass  judg- 
ment ;  and  that  is,  whether  the  contract  set  forth  in  the  plead- 
ings is  valid  and  binding  upon  all  the  parties  to  this  suit.  In- 
deed, the  course  of  the  argument  shows  that  the  counsel  them- 
selves have  regarded  this  as  the  main  point  in  controversy. 
As,  however,  other  questions  have  been  raised,  it  may  be  well 
to  devote  a  little  time  to  their  consideration,  before  proceeding 
to  the  discussion  of  the  principal  point. 

It  is  alleged  by  the  defendants  in  error  that  there  is  no  evi- 
dence before  the  court  that  Baldwin  had  power  to  enter  into 
and  execute  the  contract  in  question  ;  and  that  the  plaintiffs  in 
error,  being  trustees  and  executors,  could  not  act  in  the  sale  of 
real  estate  by  attorney.  However  the  fact  may  be,  it  is  a  suf- 
ficient answer  that  the  cause  is  to  be  tried  upon  the  record  be- 
fore us,  and  that  the  demurrer  interposed  to  the  declaration 
admits  and  disposes  of  these  and  all  similar  considerations. 

Something  has  also  been  said  of  the  hardship  of  the  case. 
With  this,  however,  the  court  have  nothing  to  do.  Whether 
the  contract  which  is  the  basis  of  this  suit  was  advantageous  to 
one  or  the  other  of  the  parties  to  it,  is  a  question  which  this 
court  cannot  entertain. 

The  only  question  before  us  is,  whether  the  contract  is  valid 
and  legal.  If  it  is,  the  decision  of  the  court  below  must  be 
reversed;  if  not,  it  must  be  affirmed.  One  mode  of  settling 
this  question  is,  to  look  at  the  intention  of  the  parties  for  the 
purpose  of  ascertaining  whether  they  designed  to  make  a  con- 
tract which  should  be  binding  upon  themselves.  If  they  did, 
this  court  will  never  disturb  it.  What  then  is  the  nature  of 
the  contract  under  consideration  1  It  is  an  agreement  for  the 
sale  and  purchase  of  land.  And,  as  to  the  intention  of  the 
parties,  can  any  one  doubt  that  the  plaintiffs  meant  to  enter 
into  a  covenant  for  the  sale  of  the  land  on  receiving  the  pur- 
chase money,  and  that  the  defendants  expected  and  intended  to 
buy  and  pay  1  Can  there  be  a  doubt  as  to  what  were  the 

VOL.  IV-  46 


362  CASES  IN  THE  COURT  OF  ERRORS. 


Townsend  v.  Hubbard. 


plaintiffs'  intentions,  or  the  intention  of  Baldwin  the  agent  1 
Is  not  the  agreement  in  the  usual  form  of  contracts  for  the  bar- 
gain and  sale  of  land  1  Are  there  any  reservations  or  limitations 
contained  in  it  1  Is  there  any  ambiguity  upon  the  face  of  it  1 
Does  it  admit  of  any  other  idea  than  that  of  a  real  and  bonafide 
design  of  selling  by  the  one  party,  and  of  purchasing  by  the 
other  1  Yet,  in  a  case  similar  to  the  present,  (Townsend  v. 
Corning,  23  Wend.  435,  442,)  it  was  gravely  said  to  be 
"  very  far  from  being  clear  that  Baldwin  intended  to  bind  his 
principals  j"  and  in  support  of  the  remark  it  was  erroneously 
asserted  that  "  the  attorney  was  careful,  in  the  conclusion,  not 
only  to  execute,  but  to  say  that  he  executed  for  himself  only." 
This  assumed  fact  is  mentioned  in  connection  with  the  subse- 
quent ratification  by  Isaiah  Townsend,  two  years  after  the  exe- 
cution of  the  contract,  to  prove  that  Baldwin  did  not  intend  to 
bind  his  principals.  The  only  difference  between  that  case  and 
this,  is  in  the  time  of  the  endorsement  and  ratification  of  the 
contract  by  Isaiah  Townsend.  In  that  case,  two  years  had 
elapsed  j  but  in  this,  the  endorsement  appears  to  have  been 
made  on  the  same  day  the  contract  was  entered  into,  and  the  pre- 
sumption is  that  it  was  a  simultaneous  act.  How  far  this  dif- 
ference in  time  may  have  influenced  the  conclusions  arrived  at 
in  Townsend  v.  Corning,  I  have  not  the  means  of  determining.  If 
this  fact  were  regarded  as  material,  it  might  have  had  the  sole 
agency  in  producing  the  result ;  but  if  otherwise,  it  is  impossible 
to  conceive  how  such  an  inference  could  be  drawn  from  such 
premises,  thus  impugning  the  motives  of  Baldwin,  and  ques- 
tioning the  intention,  through  him,  of  the  parties  at  the  time 
of  entering  into  the  contract  under  consideration.  I  would  not 
be  disrespectful ;  but  I  must  be  permitted  to  say  that  the  whole 
course  of  reasoning,  upon  that  point  at  least,  is  most  extrava- 
gant and  untenable. 

Assuming  then,  that  it  was  clearly  the  intention  of  all  the 
parties  to  make  a  legal  and  valid  contract,  it  may  be  laid  down 
as  a  principle,  that  it  is  the  duty  of  courts  of  justice,  so  far  as 


ALBANY,  DECEMBER,  1842.  353 

Townaend  t.  Hubbard. 

they  consistently  can,  to  aid  parties  in  carrying  out  their  con 
tracts-~-not  in  destroying  them. 

But  it  is  said  that  this  contract  lacks  mutuality.  If  by  this 
is  meant  a  want  of  reciprocal  terms  in  the  body  of  the  con- 
tract, I  am  so  unfortunate  as  not  to  be  able  to  discover  the 
defect.  The  plaintiffs  contract  to  sell  certain  premises,  and 
the  defendants  agree  on  their  part  to  pay  a  certain  price 
at  certain  periods  of  time.  This,  so  far  as  the  terms  are  con- 
cerned, renders  the  contract  mutual. 

But  it  is  said,  the  instrument  is  not  mutual  in  its  execution, 
inasmuch  as  the  names  and  seals  of  the  plaintiffs  are  not  affixed 
to  it ;  and  that  their  attorney  who  has  signed  and  sealed  it, 
agrees  to  nothing.  This  I  take  to  be  the  main  and  only  point 
in  the  case.  From  the  view  already  taken,  it  is  evident  that  it 
was  the  intention  of  the  parties,  Including  the  agent,  to  make 
the  contract  mutual  in  all  things,  and  valid  and  binding  on  all 
the  parties.  Let  us  now  sec  whether  they  have  been  or  are  to 
be  defeated  in  their  intention  by  any  nice  or  technical  rule  of 
law.  There  can  be  no  doubt  lhat  the  agent's  authority  is  ad 
mitted  by  the  demurrer  ;  ami  the  question  therefore  is,  whether 
he  has  executed  his  authority  in  such  a  manner  as  to  bind  his 
principals.  It  is  conceded  that  contnu  ts  for  the  sale  of  lands 
are,  under  our  statute  of  frauds,  required  to  be  in  writing.  This 
contract  is  in  writing,  and  in  point  of  form  is  unexceptionable. 
But  is  it  signed  and  sealed  by  the  agent  in  a  proper  manner  ? 
Let  us  examine  the  contract  itself  with  a  view  to  determine 
this  question.  It  commences  thus :  "  Article  of  agreement 
made  the  25th  day  of  November,  1835,  between  Isaiah  Town- 
send  and  John  Townsend  of  the  city  of  Albany,  James  Mc- 
Bride  of  the  city  of  New- York,  Gideon  Hawley,  James  King 
and  Augustus  James,  trustees  and  executors  of  William  James 
deceased,  also  of  the  city  of  Albany,  by  Harvey  Baldwin  of  the 
village  of  Syracuse,  their  attorney,  of  the  first  part,  and  Caleb 
Hubbard  and  Darius  A.  Orcutt,  of  the  second  part,  witnesseth," 
&c.  Then  follows  the  different  provisions  anil  stipulations  of 
the  contract,  which  closes  in  the  following  manner  :  "  In  wit- 


364  CASES  IN  THE  COURT  OF  ERRORS. 


Townsend  v.  Hubbard. 


ness  whereof  the  said  Harvey  Baldwin,  as  attorney  of  the  par- 
ties of  the  first  part,  and  the  said  parties  of  the  second  part, 
have  hereunto  set  their  hands  and  seals  the  day  and  year  first 
above  written.  [Signed]  Harvey  Baldwin.  [L.  s.]  Caleb 
Hubbard.  [L.  s.]  D.  A.  Orcutt.  [L.  s.]"  It  is  endorsed  as 
follows  :  "  I  hereby  countersign  and  approve  the  within  con- 
tract. In  witness  whereof  1  have  hereunto  set  my  hand  and 
seal  this  25th  day  of  Nov.  1835.  [Signed]  Isaiah  Town- 
send.  [L.  s.]"  Here  then  is  the  simultaneous  act  of  the 
agent  and  Isaiah  Townsend,  the  former  signing  and  the 
latter  approving  the  contract  on  the  one  part.  There  is 
no  pretence  that  the  plaintiffs,  or  any  of  them,  have  eve- 
at  any  time  denied  Baldwin's  right  or  power  to  enter  into 
the  contract  j  nor  have  they  in  any  manner  disapproved 
of  his  acts.  On  the  contrary,  by  bringing  this  action  they 
have  directly  recognized  his  authority  •  and  yet  it  is  pre- 
tended that  the  contract  is  void  because  the  plaintiffs  are  not 
bound  by  it.  I  suppose  if  the  in  testimonium  clause  and  en- 
dorsement by  Isaiah  Townsend  were  stricken  out,  it  would  still 
by  a  valid  contract. 

But  it  is  said  that  sealing  an  instrument  is  a  very  solemn 
act,  and  to  make  this  a  good  execution,  each  of  the  plaintiffs' 
names  should  have  been  written  by  the  attorney,  and  a  seal  af- 
fixed opposite  to  each.  There  may  be  instances,  and  no  doubt 
are,  where  seals  are  essential  to  the  validity  of  an  instrument ;  but 
this  is  not  one  of  them.  I  have  no  partiality  for  these  solemn 
forms,  which  had  their  origin  in  the  dark  and  barbarous  ages. 
The  cause  for  their  use  has  long  since  ceased  to  exist  in  this  coun- 
try, and  I  should  be  glad  to  see  the  custom  discontinued.  Thank 
heaven,  we  have  here  no  titled  nobility  with  their  heraldic  in- 
signia and  bearings  which  render  necessary  the  use  of  seals.  We 
have  no  statutes  of  entailment  and  primogeniture,  locking  up 
all  the  landed  interests  of  the  country,  century  after  century, 
in  a  few  privileged  families,  while  the  great  mass  remain  de- 
pendent vassals.  We  need  no  system  of  enactments,  and  black- 
lettered  law,  throwing  guards  around  real  estate  in  order  to 


ALBANY,  DECEMBER,  1842.  355 


Townscnd  ».  Hnbbard. 


prevent  its  alienation,  and  creating  a  monied  aristocracy  to  lord 
it  over  the  people.  Ours  is  a  different  plan — a  different  policy. 
By  the  declaration  of  independence,  we  swept  away  those 
guards  ;  and,  by  the  adoption  of  our  constitution  and  our  whole 
system  of  subsequent  enactments  and  adjudications,  our  coun- 
try and  her  institutions  have  been  placed  .upon  a  different  ba- 
sis— a  basis  more  consonant  with  the  liberty,  equality  and 
rights  of  man. 

The  facility  with  which  real  estate  may  be  acquired  in  this 
country  is  one  of  our  proudest  boasts.  Indeed,  such  is  the 
character  of  our  people  and  their  disposition  to  traffic,  that 
land  may  be  said  almost  to  have  become  an  article  of  com- 
merce ;  and  yet  we  have  unwittingly  retained  one  of  those  aris- 
tocratic forms  invented  to  discourage  its  alienation.  I  mean 
the  seal.  The  custom  which  sanctions  its  use  under  any  cir- 
cumstances is  unnecessary,  opposed  to  the  ge::ius  and  spirit  of 
the  times  and  of  our  free  institutions,  and  ought  long  since  to 
have  been  abolished. 

Entertaining  these  views,  I  would  not  extend  the  use  of  the 
seal  to  any  case  except  where  existing  rules  imperiously  de- 
mand it.  This  is  not  one  of  those  cases.  The  contract  here 
did  not  profess  to  pass  the  fee.  It  was  a  contract  of  sale  only, 
and  would  have  been  just  as  valid  without  a  seal  as  with  it 
This  point  conceded,  was  there  not  such  an  execution  of  the 
contract  by  the  agent  or  attorney  as  would  bind  the  princi- 
pals ?  An  entry  in  the  book  of  an  auctioneer,  without  his  sig- 
nature, has  been  held  sufficient  to  bind  his  principal ;  and  this 
is  a  much  stronger  case. 

The  cases  relied  upon  by  the  defendants  in  error,  so  far  as  I 
have  examined  them,  are  all  cases  where  the  seal  was  necessa- 
ry to  the  validity  of  the  instrument,  and  they  can  have,  there 
fore,  no  direct  bearing  upon  this  case.  Here  the  seal  might  be 
rejected  as  surplusage,  and  the  instrument  still  be  good.  In 
the  late  case  of  Evans  v.  Wells,  (22  Wend.  324,)  in  this  court, 
cited  by  the  counsel  for  the  plaintiffs  in  error,  this  distinction 
was  well  taken  by  Mr.  Verplanck,  and  sustained  by  the  court ; 


366  CASES  IN  THE  COURT  OF  ERRORS. 

Townsend  v.  Hubbard. 

and  I  trust  that  the  present  members,  most  of  whom  were 
members  then,  are  not  yet  prepared  to  recede  from  that 
decision.  The  counsel  for  the  defendants  in  error  seemed 
to  think  that  the  distinction  between  instruments  required 
to  be  sealed  and  those  which  are  not,  was  not  a  point  involv- 
ed in  that  case.  I  think  otherwise.  It  was  in  my  judgment 
fairly  before  the  court,  and  must  be  considered  as  conclusive  in 
this  case.  But  whether  so  or  not,  the  principle  is  a  sound  one, 
and  should  be  adopted  here. 

But  let  us  test  the  question  by  a  principle  which  cannot  err. 
Suppose  Hubbard  and  Orcutt  had  (as  they  probably  would 
have  done  in  the  event  of  the  contract  proving  a  good  one)  in- 
sisted upon  the  performance  of  the  contract  by  the  plaintiffs  in 
error;  and  suppose  the  latter  had  refused  to  give  a  con- 
veyance pursuant  to  the  terms  of  the  contract.  Does  any 
man  doubt  but  that  the  court  of  chancery  would  have  enter- 
tained a  bill,  and  decreed  a  specific  performance  ?  If  so,  the 
contract  is  mutually  binding,  and  good  against  all  the  parties. 
This  test  must  be  conclusive  against  the  defendants  in  error. 

But  again,  in  addition  to  the  case  cited,  we  Jiave  some  lights 
thrown  in  by  our  sister  states.  The  case  of  Montgomery  v. 
Dorion,  (7  JV.  H.  R.  475,)  involved  precisely  the  same  point 
as  that  presented  in  this  case,  and  arose  upon  the  same  state  of 
facts,  so  far  as  regards  the  form  of  executing  the  instrument, 
In  that  case,  the  petitioner  offered  in  evidence  a  deed  dated 
November  205  1828,  which  purported  to  be  a  conveyance  of 
the  premises  to  him  by  Joseph  Dorion  and  others  ;  but  it  was 
executed  as  follows  :  "  In  testimony  of  the  foregoing,  I.  Wins- 
low,  Jr.,  being  duly  constituted  attorney  for  the  purpose  by  all 
the  foregoing  grantors,  has  hereunto  set  his  hand  and  seal. 
[Signed]  Isaac  Winslow,  Jr."  and  seal.  Richardson,  C.  J.  (id. 
484,)  said  :  "  When  an  attorney  or  agent  makes  a  deed  of 
land,  to  make  it  pass  the  estate  of  the  principal,  it  must  be 
made  in  the  name  of  the  principal.  (4  JV*.  H.  R.  102.)  In 
this  case,  the  deed  is  in  the  name  of  the  principals,  so  that  the 
only  objection  to  it  is,  that  it  is  not  so  executed  as  to  make  it 


ALBANY,  DECEMBER,  1842.  357 

Townaend  v.  Hobbard. 

the  deed  of  the  principals.  There  is  no  particular  form  of 
words  required  to  be  used,  provided  the  act  be  done  in  the 
name  of  the  principal.  (2  Stark.  Ev.  477.)  Where  a  deed 
was  executed  thus — *  For  James  Brown,  M.  Wilkes  and  seal,' 
it  was  held  to  be  well  executed.  (  Wilkes  v.  Back,  2  East, 
142.)  It  is  not  material  that  there  should  be  more  than  one 
seal.  (Ball  v.  Dunstervillej  4  Durn.  fy  Eastj  313.)  It  is 
immaterial  whether  the  names  of  the  grantors  are  put  at  the 
bottom  or  the  top  of  the  writing,  if  in  the  whole  instrument 
the  grant  purports  to  be  their  grant.  ( Ogilvie  v.  Foljambe, 
3  Merriv.  52  ;  2  Starkie's  Ev.  605.)  In  this  case,  in  testi- 
mony that  the  grantors  who  are  named  as  such  in  the  deed 
make  the  conveyance,  the  agent  puts  his  hand  and  seal  to  the 
instrument.  This  seems  to  be  Jantamount  to  putting  his  hand 
and  seal  to  the  deed  for  them,  which  is  sufficient.  We  are 
of  opinion  that  the  deed  is  sufficient  to  pass  the  estate." 
Here  is  a  case  directly  in  point,  covering  the  whole  ground, 
and  should  be  regarded  at  least  of  as  much  weight,  and  enti- 
tled to  as  much  respect  as  any  English  authority. 

There  is  another  case  equally  strong  and  in  point,  decided  by 
the  supreme  court  of  Indiana,  viz.  Demming  v.  Bullitt,  (IBlackf. 
241.)  In  delivering  the  opinion  of  the  court  in  that  case, 
Blackford,  J.  said  :  "  A  bond  which  sets  forth,  that  A.  B.,  as 
agent  of  C.  D.,  legally  appointed  for  the  purpose,  binds  the 
said  C.  D.  to  make  a  title  &c.,  and  which  is  executed  as  fol- 
lows— A.  B.  (seal,)  agent  for  C.  D.,  is  the  deed  of  C.  D.,  pro- 
vided the  authority  of  A.  B.  be  sufficient.  C.  D.  is  here  alone 
bound  for  the  performance  of  the  covenants,  and  the  bond  is 
executed  for  him  by  his  agent."  "  In  determining  who  are  the 
parties  to  a  deed,  as  in  ascertaining  the  nature  and  effect  of  it, 
we  must  have  recourse  to  the  whole  of  the  instrument.  On 
the  face  of  this  bond,  it  appears  that  A.  B.,  as  agent  of  C.  D., 
legally  authorized  for  the  purpose,  binds  his  principal  for  the 
performance  of  a  contract,  and  as  his  agent  seals  it,  adding 
immediately  after  the  seal  the  words  agent  for  C.  D.  &c. 
Here  the  covenants  in  the  deed  explain  the  nature  and  effect  of 
the  signature  and  seal,  and  distinctly  point  to  the  intention 


368  CASES  IN  THE  COURT  OF  ERRORS. 

Townscnd  v.  Hubbard. 

of  the  parties.  They  show  that  the  words  agent  fyc.  at- 
tached to  the  signature,  are  not  merely  descriptive,  like 
that  of  solicitor  in  Burrell  v.  Jones,  but  were  intended 
to  explain  that  A.  B.'s  execution  of  the  deed  was  not  for 
himself  individually,  but  for  and  in  the  name  of  him  whose 
covenants  are  contained  in  it.  The  bond  in  Wilks  v.  Back 
was  executed  very  much  like  this,  and  that  was  adjudged  bind- 
ing on  the  principal.  So  in  Jones'  devisees  v.  Carter,  (4  Hen. 
fy  Munf.  184,)  the  execution  of  a  deed  of  partition  by  B.  Wash- 
ington^ attorney  of  R.  Carter,  was  exactly  the  same  with  this, 
and  it  was  considered  the  deed  of  Carter." 

These  accumulated  reasons  and  authorities  strengthen  each 
other,  and  bring  us  to ,  the  irresistible  conclusion  that  the 
contract  in  question  is  legal  and  valid,  and  should  be  main- 
tained. 

As  to  the  want  of  consideration,  which  is  stated  in  one  of  the 
defendant's  points,  one  dollar  is  admitted  to  have  been  paid, 
and  that  is  as  good  as  $1000,  so  far  as  the  validity  of  the  contract 
is  concerned.  But  again  :  the  covenants,  being  mutual,  furnish 
of  themselves  sufficient  consideration.  It  cannot,  I  think,  be  se- 
riously contended  that  the  contract  is  void  for  this  reason.  I 
am  of  opinion  that  the  judgment  below  ought  to  be  reversed. 

SCOTT,  senator,  delivered  a  written  opinion  in  favor  of  affirm- 
ing the  judgment  of  the  supreme  court. 

On  the  question  being  put,  "  Shall  this  judgment  be  re- 
versed T'  all  the  members  of  the  court  who  heard  the  argument, 
(twenty  in  number,)  except  DICKINSON,  senator,  voted  in  favoi 
of  affirmance. 

Judgment  affirmed. 


ALBANY,  DECEMBER,  1842.  359 


Child  c.  Starr. 


CHILD  and  others  vs.  STARR  and  others. 

Where,  in  the  conveyance  of  a  lot  situated  in  the  city  of  Rochester,  it  was  describ- 
ed as  a  mill  lot,  beginning  &c.,  and  running  "  eastwardly  to  the  Gentsee  river ; 
thence  northwardly  along  the  shore  of  said  river  to  Buffalo^treet,"  &c.:  HELD, 
that  no  part  of  the  bed  of  the  river  passed  under  the  conveyance,  but  that  the 
grantee  took  only  to  low\vater-mark. 

BOCKKE,  senator,  dissented,  holding  that  the  words  "  to  the  Genesee  river"  ex. 
tended  the  grantee's  right  usque  Jilum  aqua ;  and  that  the  words  "  along 
the  shore"  &c.,  should  be  construed  as  meaning,  along  the  centre  of  the 
river  in  the  general  direction  of  the  shore. 

Semble,  the  case  of  The  Commissioners  of  the  Canal  Fund  v.  KempthaU,  (26  Wend. 
404,)  has  settled  that,  in  this  state,  as  in  England,  a  grant  of  land  bounded  gen- 
erally  on  a  navigable  freshwater  river,  extends  the  right  of  the  grantee  to  the 
centre  or  thread  of  the  river.  Per  WAIAVORTH,  chancellor;  ted  quaere,  per  BRAD- 
ISH,  president. 

Otherwise,  however,  if  the  bank,  shore  or  margin  of  the  river  be  designated  as  the 
boundary,  or  the  line  be  described  as  running  along  the  bank  &c.  Per  WAL- 
WORTH,  chancellor. 

Fhe  like  rule  applies  to  grants  of  land  bounded  on  highways,  party-walls,  &c.  Per 
WAXWORTH,  chancellor,  and  BRADISIT,  president. 

It  makes  no  difference,  in  the  application  of  the  rule,  whether  the  grant  relate  to  a 
city-lot,  or  to  a  larger  tract  of  land  in  the  country.  Per  BOCKEE,  senator. 

A  river  in  which  the  tide  does  not  ebb  and  flow  has  no  shores,  in  the  technical 
sense  of  that  term ;  but,  when  applied  to  such  river,  it  means  those  portions 
of  the  banks  which  touch  the  margin  or  edges  of  the  stream  at  low  water.  Per 
WALWORTH,  chancellor,  and  BRADISH,  president. 

A  boundary  upon  the  shore  is  liable  to  variation  from  alluvial  increment,  the  attri- 
tion of  the  waters,  &c.  Per  WALWORTH,  chancellor. 

The  bed  of  a  private  river  cannot  pass  as  incident  or  appurtenant  to  a  grant  Per 
BRADISH,  president. 

ON  error  from  the  supreme  court.  The  action  in  the  court 
below  was  ejectment,  brought  by  Starr  and  others,  defendants 
in  error,  to  recover  possession  of  a  certain  lot  known  as  "  mill- 
seat-lot  No.  12,"  situated  in  the  city  of  Rochester.  They  re 
covered  judgment  j  whereupon  the  adverse  parties  brought  er- 
ror. The  facts  of  the  case,  together  with  the  reasons  of  the 
court  below  for  the  judgment  there  rendered,  are  stated  in  20 
Wend.  149  it  seq. 

VOL.  IV.  47 


370  CASES  IN  THE  COURT  OF  ERRORS. 


Child  v.  Starr. 


S.  Beardsley,  for  the  plaintiffs  in  error.  No  doubt  the  pro- 
prietor of  land  situated  on  a  fresh  water  river  is  presumed  to 
own  usque  filum  aqua.  But  this  is  a  mere  presumption,  for 
one  man  may  own  the  bed  of  the  river,  and  another  the  ad- 
jacent soil.  The  presumption  wholly  fails  where,  as  in  this 
case,  it  is  shown  that  the  grant  under  which  the  party  claims, 
limits  the  land  to  the  shore  or  bank,  instead  of  bounding 
it  on  or  along  the  river.  (The  Canal  Appraisers  v.  The  Peo- 
ple, 17  Wend.  571,  599,  600 ;  Den  v.  Wright,  1  Pet.  C.  C. 
Rep.  64,  69 ;  Hatch,  v.  Dwight,  17  Mass.  R.  289,  298  ;  But- 
ler's Notes  to  Co.  Lit.  261,  a.  note  205  ;  Wright  v.  Howard, 
1  Sim.  Sf  Stu.  190 ;  Jackson  v.  Hathaway,  15  John.  447  ; 
Tyler  v.  Hammond,  11  Pick.  193,  213 ;  Storer  v.  Freeman,  6 
Mass.  R.  435  ;  Tyler  v.  Wilkinson,  4:  .Mason,  397, 400  ;  Hand- 
ly:s  Lessee  v.  Anthony,  5  Wheat.  374  j  Warner  v.  South- 
worth,  6  Conn.  R.  471.) 

The  fee  of  land  covered  by  the  water  of  a  river  will  not 
pass  as  appurtenant  to  land  on  the  shore,  conveyed  by  precise 
and  definite  boundaries.  (Jackson  v.  Hathaway,  15  John. 
447  ;  Tyler  v.  Hammond,  11  Pick.  193,  214.) 

The  common  law  rule  of  construction,  that  a  grant  of  land 
bounded  upon  a  highway  or  river  carries  the  fee  to  the  centre 
of  the  highway  or  river,  does  not  apply  to  conveyances  of  city- 
lots.  (In  the  matter  of  Lewis-street,  2  Wend.  472,  473  •  City 
of  Cincinnati  v.  White's  Lessee,  6  Pet.  431  ;  Trustees  of  Wa- 
tertown  v.  Cowen,  4  Paige,  510,  513  ;  Livingston  v.  The 
Mayor  fyc.  of  New-York,  8  Wend-  85,  98,  99;  Wyman  v. 
The  Mayor  fyc.  of  New-York,  11  id.  486  ;  3  Kent's  Com.  432, 
2d.  ed.)  All  the  cases  in  this  country  in  which  the  common 
law  rule  has  been  applied,  relate  to  farms  or  large  tracts  of 
land.  (Handly's  Lessee  v.  Anthony,  5  Wheat.  374  ;  Gavifs 
adm'rs  v.  Chambers,  3  Ohio  R.  495  ;  Ex  parte  Jennings,  6 
Cowen,  518 ;  Mams  v.  Pease,  2  Conn.  R.  481  ;  Lunt  v.  Hol- 
land, 14  Mass.  R.  149  ;  Jackson  \.  Louw,  12  John.  252  ; 
Claremont  v.  Carlton,  2  JV*.  H.  R.  369  ;  Hayes*  ex'r  v.  .Bow- 
man, 1  Hand.  417.) 


ALBANY,  DECEMBER,  1843.  37 j 


ChUd  v.  Starr. 


0.  Hastings,  for  the  defendants  in  error.  The  true  con- 
struction of  the  deeds  under  which  the  defendants  in  error  claim, 
carries  the  premises  granted  to  the  centre  of  the  Genesee  river. 
The  south  lines  of  the  lots  described  in  the  deeds  extend  in 
terms  to  the  river ;  and  it  is  a  settled  rule  of  construction  that 
lines  thus  described  run  to  the  centre  orjilum  aqua.  (Jackson  v. 
Louw,  12  John.  252.)  The  east  lines  of  the  lots,  therefore, 
start  from  a  point  in  the  centre  of  the  stream,  and  run  thence 
"  along  the  shore  j"  that  is,  in  the  direction  of  the  shore,  accord- 
ing to  its  windings  and  turnings.  Such  is  a  fair  construction 
of  the  words,  taken  in  connection  with  the  other  parts  of  the 
description. 

It  is  clear  that  "  mill-seat-lot  No.  12,"  as  originally  laid  out, 
extended  to  the  centre  of  the  Genesee  river,  and  that,  by  the 
deeds  under  which  the  defendants  in  error  claim,  Rochester  in- 
tended to  convey  the  whoie  lot.  It  is  described  in  those  deeds 
as  a  mill-seat-lot.  All  the  water  appropriated  to  the  lot  is 
granted  by  those  deeds,  but  no  right  is  given  to  take  the  water 
off  the  lot  into  the  river  ;  nor  is  any  part  of  the  lot  reserv- 
ed or  excepted.  (See  the  Commissioners  of  the  Canal  Fund  v. 
Kempshallj  26  Wen.d.  404.)  The  term  parcel,  &c.  used  in  the 
deeds,  furnishes  no  evidence  that  the  grantor  did  not  intend  to 
convey  the  whole  lot ;  because  it  was  conveyed  to  the  gran- 
tees in  unequal  portions.  The  language  used  in  the  deeds 
is  such  as  has  been  uniformly  held  to  indicate  an  inten- 
tion that  the  lands  granted  should  extend  ad  filum  aqua. 
(See  the  authorties  cited  in  the  note  to  Ex  parte  Jennings,  6 
Cowen,  546,547.) 

It  is  conceded  that  premises  granted  should  extend  only  to 
the  shore  or  margin  of  the  stream,  where  the  intention  so  to 
limit  them  is  clearly  manifested  by  the  terms  of  the  grant.  But, 
in  respect  to  freshwater  rivers,  the  presumption  is  in  favor  a 
construction  which  will  extend  the  grant  to  the  centre  of  the 
stream ;  (Lunt  \.  Holland,  14  Mass,  Rep.  149  ;  Claremont  v. 
Carlton,  2  JV.  H.  Rep.  369  ;  Harramond  v.  M'Glaughon,  Tay- 
lor's JV.  Car.  Rep.  136  ;  Handles  Lessee  v.  Anthony,  5  Wheat. 


372  CASES  IN  THE  COURT  OF  ERRORS. 

Child  v.  Starr. 

374  ;)  and,  in  order  to  rebut  such  presumption,  it  must  clearly 
appefrr  that  the  grantor  intended  to  reserve  to  himself  the  bed 
of  the  stream.  No  such  intention  was  here  manifested.  Some 
of  the  cases  last  cited  show  that,  though  the  termini  of  lines 
extending  to  and  from  a  river  are  all  marked  by  natural 
monuments  on  the  bank,  yet  if  there  are  words  in  the  convey- 
ance indicating  that  the  stream  is  to  be  the  boundary,  the  gran- 
tee will  have  the  benefit  of  the  presumption  that  his  grant  ex- 
tends adfilum  aqua. 

There  is  no  foundation  for  the  distinction  insisted  on  by  the 
counsel  for  the  plaintiffs  in  error,  between  city-lots  and  larger 
tracts  of  land  in  the  country.  The  cases  cited  in  support  of 
the  distinction  stand  upon  the  principle,  that  where  the  pro- 
prietor of  a  plat  of  ground  has  dedicated  it  to  the  public  as  a 
street  or  square,  and  has  conveyed  lots  bounded  on  such  plat 
before  the  actual  appropriation  of  it  for  public  use,  he  will  be 
treated  as  the  owner  of  the  fee,  subject  to  the  servitude  of 
the  public.  In  such  cases  the  plats  are  regarded,  not  as  public 
highways  and  squares,  but  as  distinct  pieces  of  ground  to  which 
the  lots  bounded  on  them  are  limited.  The  general  rule  that 
lands  bounded  on  a  highway  or  street  extend  to  the  centre,  is 
admitted  by  these  cases  ;  (see  Matter  of  Lewis-Street,  2 
Wend.  493,  per  Savage,  Ch.  J. ;)  and  the  case  of  The  Com- 
missioners of  the  Canal  Fund  v.  Kempshall,  above  cited,  is  a 
direct  authority  for  saying  that  the  like  rule  prevails  in  refer- 
ence to  city-lots  bounded  on  a  river. 

WALWORTJI,  Chancellor.  The  decision  of  a  majority  of  this 
court  in  the  case  of  The  Canal  Appraisers  v.  The  People  ex 
rel.  Tibbitts,  (17  Wend.  590,)  although  put  upon  other  grounds 
by  some  of  the  members  who  voted  for  a  reversal  of  the  decis- 
ion of  the  supreme  court,  cast  a  shade  of  doubt  upon  the  ques- 
tion whether  the  common  law  rule  prevailed  here  as  to  the 
construction  of  conveyances  of  lands  bounded  by  or  upon  a 
river  or  stream  above  tide  waters.  That  doubt,  however,  is 
probably  removed  by  the  recent  decision  of  this  court  in  the 


ALBANY,  DECEMBER,  1842.  373 


Child  r.  Starr. 


case  of  The  Commissioners  of  the  Canal  Fund  v.  Kempshall, 
(26  Wend.  Rep.  404,)  in  which  the  judgment  of  the  supreme 
court  in  favor  of  the  riparian  owner  was  unanimously  affirmed. 
The  common  law  rule,  as  I  understand  it,  is  that  the  riparian 
proprietor  is  prima  facie  the  owner  of  the  alveus  or  bed  of 
the  river  adjoining  his  land,  to  the  middle  or  thread  of  the 
stream  j  that  is,  where  the  terms  of  his  grant  do  not  appear 
and  show  that  he  is  limited.     And  when  by  the  terms  of  the 
grant  to  the  riparian  proprietor  he  is  bounded  upon  the  river 
generally  as  a  natural  boundary,  or,  in  the  language  of  Pothier, 
where  the  grant  to  the  riparian  proprietor  has  no  other  bounda- 
ry on  the  side  thereof  which  is  adjacent  to  the  river  but  the 
stream  itself,  the  legal  presumption  is  that  his  grantor  intended 
to  convey  to  the  middle  of  such  stream  ;  subject  to  the  right 
of  the  public  to  use  the  waters  of  the  river  for  the  purposes  of 
navigation  in  their  accustomed  channel,  where  they  are  by  na- 
ture susceptible  of  such  use.     It  has  also  been  decided  that 
the  same  principle  applies  to  the  construction  of  grants  bound 
ed  generally  upon  highways,  party- walls,  ditches  &c.,  which 
constitute  natural  boundaries  between- the  lands  granted  and 
the  adjacent  property.     Thus,  in  Jackson  v.  Hathaway ',  (15 
John.  Rep.  454,)  although  by  the  terms  of  the  grant  in  that 
case  the  supreme  court  considered  the  whole  of  the  highway 
as  excluded,  Mr.  Justice  Platt,  who  delivered  the  opinion  of 
the  court,  says  :  "  Where  a  farm  is  bounded  along  a  highway,  or 
upon  a  highway,  or  as  running  to  a  highway,  there  is  reason 
to  intend  that  the  parties  meant  the  middle  of  the  highway."' 
So  in  Warner  v.  Southworth,  (6  Conn.  Rep.  471,474,)  where  the 
grantor  had  divided  one  of  his  lots  from  another  by  an  artificial 
ditch  and  embankment,  and  afterwards  conveyed  one  of  those 
lots  by  a  deed  which  bounded  it  upon  the  ditch  generally,  with- 
out any  words  of  restriction,  the  court  of  errors  in  our  sister 
state  of  Connecticut  decided  that  the  grant  extended  to  the 
middle  of  the  ditch.     And  Judge  Daggett,  in  delivering  the 
opinion  of  the  court  in  that  case,  says  :  "  Doubtless  had  the 
boundary  line  been  a  stone- wall,  six  feet  in  width  at  the  bottom, 


374  CASES  IN  THE  COURT  OF  ERRORS. 


Child  o.  Starr. 


the  grant  would  have  extended  to  the  centre  of  it."     (See  also 
3  Kent's  Com.  432.) 

Although  this  principle  exists  as  to  the  construction  of  grants 
which  are  unrestricted  in  their  terms,  and  also  as  to  the  legal 
presumption  of  ownership  by  the  riparian  proprietor  where 
from  lapse  of  time  or  otherwise  the  terms  of  his  grant  from 
the  former  or  original  proprietors  cannot  be  ascertained,  there 
can  be  no  doubt  of  the  right  of  the  general  owner  of  the  bed 
of  the  river,  as  well  as  of  the  land  upon  its  banks,  so  to  limit 
or  restrict  his  conveyance  of  the  one  as  not  to  divest  himself  of 
his  property  in  the  other.  Lord  Chief  Justice  Hale,  in  his 
learned  treatise  De  Jure  Maris,  &c.,  admits  that  the  prima  fa- 
cie presumption  of  ownership  of  the  bed  of  the  stream  by  the  ri- 
parian proprietor  may  be  rebutted  by  evidence  that  the  contrary 
is  the  fact.  He  says,  "  one  man  may  have  the  river  and  others 
the  soil  adjacent,  or  one  may  have  the  river  and  soil  there- 
of, and  another  the  free  or  several  fishing  in  that  river."  (See 
Harg.  Law  Tr.  5.)  And  the  learned  and  venerable  commen- 
tator upon  American  law  says,  it  is  competent  for  the  riparian 
proprietor  to  sell  his  upland  to  the  top  or  edge  of  the  bank  of 
a  river,  and  to  reserve  the  stream  or  the  flats  below  highwater- 
mark,  if  he  does  it  by  clear  and  specific -boundaries.  (3  Kent's 
Com.  434.)  This  was  also  expressly  decided  by  Mr.  Justice 
Washington  in  the  circuit  court  of  the  United  States  for  the 
third  circuit,  in  the  case  of  Den  v.  Wright^  (Peters  C.  C. 
Rep.  64,)  where  the  owner  of  the  alveus  or  bed  of  the  creek, 
and  also  of  the  adjacent  land  upon  the  south  bank  thereof,  had 
conveyed  29  acres  in  the  bed  of  the  creek,  bounded  by  the 
sides  of  the  same,  without  any  of  the  land  upon  either  of 
the  adjacent  banks.  In  the  case  of  Dunlap  v.  Stetson, 
(4  Mason's  Rep.  349,)  in  the  circuit  court  of  the  United 
States  for  the  first  circuit,  where  the  lands  granted,  instead 
of  being  bounded  on,  the  Penobscot  river  generally,  were 
described  as  commencing  at  a  stake  and  siones  on  its  west  bank, 
and  after  running  on  the  other  sides  of  the  lot  certain  courses 
and  distances  to  another  stake  and  stones  on  the  same  bank  of 
that  river,  and  thence  upon  the  bank  at  highwater-mark}  to  the 


ALBANY,  DECEMBER,  1842.  375 


ChUd  v.  Starr. 


place  of  beginning,  Judge  Story  decided,  that  the  flats  be- 
tween high  and  lowwater-mark  were  not  conveyed  by  the 
deed  ;  although  by  a  colonial  ordinance,  which  was  recognized 
as  the  existing  law  of  the  state,  grants  bounded  generally  upon 
tide  waters  carried  the  grantee  to  lowwater-mark.  A  similar 
decision  was  made  by  the  supreme  court  of  Massachusetts  in 
the  case  of  Storer  v.  Freeman,  (6  Mass.  Rep.  435.)  In  that 
case  one  of  the  conveyances  described  the  lines  as  running  to 
the  shore  of  Gamaliel's  Neck,  and  thence  by  the  shore,  &c. 
And  in  the  other  deed  these  lines  were  described  as  running  to 
a  heap  of  stones  at  the  shore  of  the  neck,  and  thence  by  the 
shore  to  the  land  conveyed  by  the  first  deed.  And  in  the  case 
of  Hatch  v.  Dwightj  (17  Mass.  R.  298,)  the  same  court  decided 
that  where  land  was  bounded  by  the  bank  of  a  stream,  it  ne- 
cessarily excluded  the  stream  itself.  In  delivering  the  opin- 
ion of  the  court  in  that  case,  Parker,  C.  J.  says,  that  the  owner 
may  undoubtedly  sell  the  land  without  the  privilege  of  the 
stream,  "  as  he  will  do  if  he  bounds  his  grant  by  the  bank." 

Running  to  a  monument  standing  on  the  bank,  and  from 
thence  running  by  the  river  or  along  the  river  &c.,  does  not  re- 
strict the  grant  to  the  bank  of  the  stream  ;  for  the  monuments 
in  such  cases  are  only  referred  to  as  giving  the  directions  of  the 
lines  to  the  river,  and  not  as  restricting  the  boundary  on  the  river. 
If  the  grantor,  however,  after  giving  the  line  to  the  river, 
bounds  his  land  by  the  bank  of  the  river,  or  describes  the  line 
as  running  along  the  bank  of  the  river,  or  bounds  it  upon  the 
margin  of  the  river,  he  shows  that  he  does  not  consider  the 
whole  alveus  of  the  stream  a  mere  mathematical  line,  co  as  to 
carry  his  grant  to  the  middle  of  the  river.  And  it  appears  to 
me  equally  clear  that  the  grant  is  restricted  where  it  is  bounded 
by  the  shore  of  the  river,  as  in  the  present  case. 

The  shore  of  tide  water  is  that  portion  of  the  land  which  is 
alternately  covered  by  the  water  and  left  bare  by  the  flux  and 
reflux  of  the  tide.  Properly  speaking,  therefore,  a  river  in 
which  the  tide  does  not  ebb  and  flow  has  no  shores,  in  the 
legal  sense  of  the  term.  It  has  ripam  but  not  littus.  The 


376  CASES  IN  THE  COURT  OF  ERRORS. 


Child  ».  Starr. 


term  shores,  however,  wben  applied  to  such  a  river,  means  the 
river's  banks  above  the  lowwater-mark  ;  or  rather,  those  por- 
tions of  the  banks  of  the  river  which  touch  the  margin  or  edges 
of  the  water  of  the  stream.  A  grant,  therefore,  which  is  bound- 
ed by  the  shore  of  a  freshwater  river,  conveys  the  land  to  the 
water's  edge,  at  lowwater  ;  and,  as  in  the  case  of  lands  bound- 
ed upon  tide  waters,  that  boundary  of  the  grant  is  liable  to  be 
changed  by  the  gradual  alterations  of , the  shore  by  alluvial  in- 
crement, or  the  attrition  of  the  water. 

The  fact  that  the  premises  conveyed  in  this  case  are  de- 
scribed in  the  deeds  as  mill-lots,  cannot  operate  to  extend  the 
grants  into  the  alveus  or  bed  of  the  river.  For  the  deeds  also 
show  that  the  contemplated  mills  were  to  be  supplied  with 
water  from  the  mill-race  already  constructed  ;  and  not  by  wa- 
ter to  be  taken  out  of  the  Genesee  river,  opposite  the  lots  grant- 
ed. And  the  right  to  discharge  the  water  into  the  river,  after  it 
has  been  used  to  propel  the  machinery  on  the  mill-lots,  is  at  most 
but  an  easement ;  not  requiring  for  its  enjoyment  the  ownership 
of  any  part  of  the  bed  of  the  stream  by  the  grantees.  Upon  the 
question,  therefore,  whether  the  bed  of  the  river  passed  by  those 
deeds,  I  concur  with  Mr.  Justice  Bronson,  in  the  opinion  given 
by  him  in  the  court  below,  dissenting  from  the  conclusion  at 
which  his  two  associates  on  the  bench  had  arrived. 

For  that  reason  I  shall  vote  to  reverse  the  judgment  of  the 
supreme  court,  and  to  award  a  venire  de  novo  ;  to  the  end  that 
the  jury  may  ascertain  the  part  of  the  premises  in  controversy 
above  ordinary  lowwater-mark,  if  any,  which  was  in  posses- 
sion of  the  defendants  in  the  court  below  at  the  time  of 
the  commencement  of  this  suit.  And  if  a  majority  of  the 
court  should  concur  with  me  in  supposing  that  the  judg- 
ment which  was  rendered  by  the  supreme  court  should  be 
reversed,  it  appears  to  be  a  case  where  the  costs  of  this 
writ  of  error  may  very  properly  be  left  to  abide  the  event 
of  the  suit  upon  the  venire  de  novo  which  must  then  be 
awarded. 


ALBANY,  DECEMBER,  1842.  377 

Child  u.  Starr. 

BOCKEE,  Senator.  Both  parties  in  this  case  claim  title  un- 
der Nathaniel  Rochester,  who  was  seised  in  fee  of  mill-seat-lot 
No.  12,  bounded  by  the  Genesee  river  on  the  east.  It  is 
admitted  that  the  words  of  description  in  the  partition  deed 
between  Carrol,  Fitzhugh  and  Rochester,  gave  to  the  latter 
the  centre  of  the  Genesee  river  as  his  eastern  boundary.  Roch- 
ester conveyed  to  Cobb  parcel  of  mill-seat-lot  No.  12,  and 
the  material  part  of  the  description  of  the  premises  is  the 
line  running  "  eastwardly  to  the  Genesee  river,  thence  north- 
wardly along  the  shore  of  the  said  river  to  Buffalo-street." 
Similar  words  of  description  are  contained  in  the  deed  from 
Rochester  to  Morgan.  The  defendants  show  themselves  enti- 
tled to  all  the  rights  of  Cobb  and  Morgan,  the  grantees  of 
Rochester ;  and  if  the  construction  contended  for  by  the  de- 
fendants and  adopted  by  the  supreme  court  be  correct,  they 
are  the  rightful  owners  of  the  whole  of  lot  No.  12,  extend- 
ing to  the  centre  of  the  Genesee  river,  excepting  the  alley  re- 
served on  the  south  side  of  the  lot.  In  reference  to  the  ques 
tion  arising  in  this  case,  there  is  no  foundation  for  the  dis- 
tinction which  is  suggested  between  city-lots  and  larger  tracts 
of  land  in  the  country.  Whether  the  tracts  of  land  are  large 
or  small,  whether  lying  in  the  city  or  the  country,  the  same 
rules  of  justice  and  sound  legal  construction  ought  to  be  ap- 
plied. Neither  can  the  rights  of  the  owner  of  land  be  extend- 
ed laterally  upon  the  same  principle  that  they  extend  upward 
usque  ad  cesium  y  and  downward  ad  infernos.  This  lateral  ex- 
tension might  make  some  difficulty  between  landed  proprietors. 
The  question  is,  whether,  according  to  the  settled  legal  rules 
of  construction,  the  land  under  the  waters  of  the  Genesee  river 
as  far  as  the  centre  thereof,  is  included  in  the  conveyances  un- 
der which  the  defendants  in  error  claim  title.  The  south  line 
of  the  lot  is  described  as  running  "  to  the  Genesee  river, n 
which,  according  to  the  language  of  all  the  authorities,  means 
the  centre  of  the  river.  The  river  may  be  considered  as  a 
mathematical  line  dividing  the  possessions  of  the  opposite  JIM  - 
prietors.  Being  at  the  central  point  of  the  rrver,  the  lioe  runs 

VOL.  IV.  48 


378  CASE8  IN  THE  COURT  OF  ERRORS. 

Child  v.  Starr. 

"  northwardly  along  the  shore  of  said  river  to  Buffalo-street." 
These  words,  in  the  connection  in  which  they  stand,  do  not 
necessarily  and  expressly  limit  the  grantees  to  the  western 
margin  of  the  river.  They  may  be  construed,  that  the  line 
shall  run  northwardly  in  the  general  direction  of  the  shore. 
This  construction  is  aided  by  the  presumptions  of  law  in  fa- 
vor of  the  riparian  owner.  It  is  also  aided  by  the  circum- 
stance that  the  premises  are  a  "  mill-seat-lot" — so  conveyed  to 
Rochester,  and  so  conveyed  by  him — and  that  it  is  expressly 
entitled  to  certain  hydraulic  privileges.  And  although  the 
water  is  to  be  taken  from  the  river  above  this  lot  and  convey- 
ed to  the  premises  by  a  race-way,  it  may  fairly  be  presumed 
that  the  water,  after  being  used,  cannot  be  returned  to  the  race- 
way, or  discharged  upon  Buffalo-street.  It  seems  to  be  neces- 
sary to  the  enjoyment  of  the  privileges  granted,  that  there 
should  be  a  point  of  discharge  into  the  Genesee  river.  It  may 
be  inferred  from  the  case,  that  the  premises  in  controversy  are 
now  valuable  for  building  purposes.  May  not  the  river  own- 
ers, by  embankment  or  by  building,  deprive  the  owners  of  the 
mill-seat-lot  of  a  large  portion  of  the  value  of  their  property, 
by  preventing  the  use  of  the  waters  intended  to  be  secured  to 
them  ?  The  difficulties  of  any  other  construction  than  that 
which  I  have  given  to  these  deeds,  would  be  almost  insurmount- 
able. Reasons  founded  on  public  policy  and  general  conven- 
ience forbid  the  disjunction  of  the  ownership  of  the  bed  of  the 
river  and  the  adjacent  land.  It  would  in  many  instances  pre- 
sent a  line  of  boundary  as  uncertain  and  variable  as  the  edge 
of  a  cloud.  Although  one  may  own  the  land,  and  another  the 
adjacent  stream  or  the  land  covered  by  it,  yet  the  intendment 
of  the  common  law  will  apply  in  favor  of  the  riparian  proprie- 
tor in  all  cases  where  there  is  no  evidence  to  rebut  it ;  and  will 
equally  apply  in  all  cases  even  of  doubtful  construction.  My 
opinion  is,  that  the  fair  and  reasonable  construction  and  legal 
effect  of  the  conveyances  from  Rochester  to  Cobb  and  Morgan 
carry  the  grantees  to  the  centre  of  the  Genesee  river,  and  that 
the  judgment  of  the  supreme  court  ought  to  be  affirmed. 


ALBANY,  DECEMBER,  1842.  379 


Child  v.  Starr. 


BRADISH,  President.  This  case  is  simply  one  of  the  con- 
struction of  an  express  grant  of  land.  And  although  both  in  the 
opinion  of  the  court  below  by  Justice  Cowen,  and  the  dissenting 
opinion  of  Justice  Bronson,  the  important  question  of  the  ap- 
plicability of  the  common  law  of  England  to  the  navigable 
rivers  of  this  state  was  discussed  at  considerable  length,  yet  it 
seems  to  me  that  this  case  does  not  embrace  that  question  ; 
and  that  our  decision,  therefore,  must  turn  on  considerations 
altogether  distinct  from,  and  independent  of  it.  For  in  what- 
ever way  that  interesting  and  important  question,  which  I  con- 
sider still  an  open  one  in  this  state,  may  finally  be  decided ; 
whether  the  proprietary  interest  in  the  beds  of  our  navigable 
rivers  and  lakes,  not  tide  waters,  shall  be  decided  to  be  in  the 
people  collectively,  or  in  the  riparian  owner,  it  is  conceded  by 
all  that  this  right  may  be  acquired  by  private  individuals  under 
express  grant,  or  claimed  by  prescription.  This  is  sufficient 
for  the  purposes  of  the  present  case  :  for  it  is  admitted  that 
previous  to  the  13th  of  August,  1817,  Charles  Carroll,  Wil- 
liam Fitzhugh,  and  Nathaniel  Rochester,  were  jointly  seised 
of  a  tract  of  land,  embracing  the  premises  in  question  to  the 
thread  of  the  stream  ;  and  that  they  were  the  common  source 
of  the  title  of  both  the  plaintiffs  and  defendants.  On  the  13th 
of  August,  1817,  Charles  Carroll,  William  Fitzhugh  and 
Nathaniel  Rochester  made  partition  of  their  joint  interest ; 
and  mill-seat-lot  No.  12,  embracing  the  premises  in  ques- 
tion, was  assigned,  and  duly  conveyed  to  Nathaniel  Roch- 
ester. On  the  9th  of  November,  1819,  Rochester  conveyed  a 
part  of  said  lot  to  WTilliam  Cobb,  describing  it  as  follows  : 
"  Beginning  &c.  at  the  northwest  corner  thereof,  on  the  south 
bounds  of  Buffalo-street,  running  thence  southwardly  along  the 
east  bounds  of  the  mill-yard,  and  at  right  angles  with  Buffalo- 
street,  thirty  feet ;  thence  eastwardly  parallel  with  Buffalo- 
street,  about  forty-five  feet  to  the  Genesee  river  ;  thence  north- 
wardly along  the  shore  of  the  said  river,  to  Buffalo-street ; 
thence  along  the  south  bounds  of  Buffalo-street  westwardly  to 
the  place  of  beginning."  On  the  same  day  Rochester  convey- 


380  CASES  IN  THE  COURT  OF  ERRORS. 


Chfld  v.  Starr. 


cd  another  part  of  the  said  lot  to  Thomas  Morgan,  describing 
it  as  follows  :  "  All  that  certain  piece  or  parcel  of  mill-seat-lot 
No.  12,  beginning  &c.  at  the  southwest  corner  of  that  part  of 
the  said  lot  No.  12  this  day  sold  and  conveyed  to  William 
Cobb,  running  thence  southwardly  along  the  east  bounds  of 
the  mill-yard,  twenty-five  feet  j  thence  eastwardly  along  the 
north  bounds  of  an  alley,  and  parallel  with  Buffalo-street,  to 
the  Genesee  river  (nearly  fifty  feet)  ;  thence  northwardly  along 
the  shore  of  the  Genesee  river  to  William  Cobb's  corner  • 
thence  along  the  south  bounds  of  the  said  William  Cobb  to  the 
place  of  beginning."  By  sundry  proceedings  and  mesne  con- 
veyances, the  premises  embraced  in  these  two  grants  became 
the  property  of  the  defendants  in  error. 

It  will  thus  be  perceived  that  the  question  in  this  case  is 
simply  one  of  the  construction  of  these  two  grants,  and  as  to  the 
extent  of  the  premises  which  passed  under  them.  The  defen- 
dants in  error  insist  that,  together,  these  grants  conveyed  the  lot 
to  the  thread  of  the  stream,  and  so  the  supreme  court  has  de- 
cided j  while  the  plaintiffs  in  error  contend,  that  they  con- 
veyed the  lot  only  to  the  shore  of  the  river,  leaving  still  in  the 
grantor  the  residue  of  the  lot  between  the  shore  of  the  rivei 
and  the  thread  of  the  stream. 

The  case  seems  to  me  very  clear  both  upon  principle  and 
authority.  As  the  south  boundary  lines  of  the  two  grants  ran 
to  the  Genesee  river  generally,  if  they  had  been  without  subse- 
quent qualification  and  restriction,  they  would,  by  a  well  set- 
tled and  uniformly  acknowledged  rule  of  construction,  have 
extended  to  thefilum  aqua,  or  thread  of  the  stream.  But  when 
the  east  boundary  lines  came  to  be  described  as  running  along 
the  shore  of  the  river,  this  fixed  the  termini  of  the  south  lines, 
and  limited  the  grants  to  the  shore,  instead  of  the  thread  of  the 
stream.  Though  the  term  shore  is  technically  applicable  only 
to  the  sea,  to  lakes,  or  other  large  bodies  of  water  ;  yet,  in  its 
judicial  and  popular  application  to  rivers,  it  is,  by  elementary 
writers,  the  adjudications  of  the  courts,  and  in  common  under- 
standing, as  clearly  defined,  as  well  settled,  and  as  universally 


ALBANY,  DECEMBER,  1842.  331 


Child  v.  Starr. 


recognized,  as  is  the  filum  aqua,  or  thread  of  the  stream  ;  and 
a  grant  of  land  bounded  generally  on,  or  running  along  a  pri- 
vate stream,  would  not  more  certainly  carry  the  grant  to  the 
thread  of  the  stream  than  would  a  grant  bounded  by,  and  run- 
ning along  the  shore  of  such  stream,  be  limited  to  the  water's 
edge  or  margin  of  the  stream.  To  consider  the  expressions 
"  along  a  stream"  and  "  along  the  shore  of  a  stream"  as  mean- 
ing the  same  thing,  would  be  to  render  identical  things  entirely 
different,  and  to  confound  distinctions  well  settled  and  uni- 
formly recognized.  In  Hatch  v.  Dwight  and  another,  (17  Mass. 
R.  289, 298,)  Parker,  Ch.  J.  says  :  "  The  owner  may  sell  land 
without  the  privilege  of  the  stream,  as  he  will  if  he  bounds  his 
grant  by  the  banks."  And  again  :  "  The  land  released  is  lim- 
ited to  the  bank  of  the  stream,  which  necessarily  excludes  the 
stream  itself."  He  cited  approvingly  Storer  v.  Freeman,  (6 
Mass.  R.  435,)  before  Ch.  J.  Parsons,  where  it  was  held, 
that  a  conveyance  of  land  described  as  running  to  the  shore, 
and  thence  by  the  shore,  did  not  include  the  shore,  or  the 
flats  between  high  and  lowwater-mark.  So  in  the  case  of 
The  Canal  Appraisers  v.  The  People,  (17  Wend.  596,)  Chancel- 
lor Walworth  says  :  "  There  cannot  be  a  possible  doubt  that  if 
I  am  the  owner  of  lands  on  either  or  both  sides  of  a  stream, 
whether  the  same  be  navigable  or  otherwise,  and  am  also  the 
owner  of  the  bed  of  the  stream  itself,  I  may  convey  the  land 
on  either  side,  or  both,  in  such  a  manner  as  to  retain  or  reserve 
to  myself  the  bed  of  the  river  or  stream,  and  the  islands  there- 
in, if  any  such  there  should  be."  Speaking  of  certnin  military 
bounty  lots,  he  says  :  "  Where  such  lots  are  situated  on  the 
banks  of  navigable  rivers,  they  are  bounded  on  the  banks  of 
such  rivers  or  streams,  and  run  thence  along  the  bank  of  such 
stream.  This  is  a  clear  indication  of  the  intention  of  the 
grantors  that  the  patent  should  not  include  any  part  of  the 
alveus  of  the  stream,  or  of  the  islands  therein.  It  is,  there- 
fore, a  limited  grant,  within  the  meaning  of  that  term,  ns  Tised 

by  writers  on  the  civil  law,  and  it  cannot  be  extended  to  the 

. 


382  CASES  IN  THE  COUBT  OF  ERRORS. 


Cluld  ».  Starr. 


thread  of  the  stream,  or  include  any  island  therein,  even  on  the 
common  law  principle."  (Id.  599.) 

Analogous  to  this  is  the  adjudged  and  settled  law  in  relation 
to  grants  of  land  bounded  by  a  highway  or  partition  wall  gen- 
erally j  and  those  bounded  by,  and  along  the  side  of  such  high- 
way or  wall.  In  the  former  case,  the  grants  extend  to  the 
centre  of  the  highway  or  wall ;  but  in  the  latter,  they  would 
be  limited  to  the  sides  of  such  highway  or  wall,  leaving  still  in 
the  grantor  the  wall  and  the  fee  of  the  land  over  which  the 
highway  passes,  subject  only  to  the  easement  or  public  right 
of  way.  In  the  absence  of  proof  to  the  contrary,  the  law  in- 
dulges a  prima  facie  presumption  that  the  riparian  owner  of 
land  on  a  private  river  is  also  the  owner  of  the  bed  of  the 
stream  to  thejilum  aqua.  But  there  is  no  presumption  against 
direct  proof,  nor  any  prima  facie  intendment  in  the  presence 
of  an  express  grant.  Such  grant  fixes  its  own  limits,  and  de- 
termines the  rights  of  the  parties  under  it.  "  Expressumfacit 
cessare  taciturn,"  and  "  conventio  vincit  legem,"  are  sound  max- 
ims in  the  law,  and  are  applicable  in  this  case. 

With  great  deference  to  the  learned  judge  who  delivered  the 
opinion  of  the  court  below  in  this  case,  I  cannot  admit  it  to  be 
correct,  either  upon  principle  or  authority,  that  when  the  law 
has  once  fixed  the  proprietorship  of  the  shore  or  bank  of  a  private 
river,  "  the  soil  of  the  river  follows,  as  an  incident,  or  rather 
as  a  part  of  the  subject  matter,  usque  filum  aqua."  The  bed 
of  a  private  river  is  a  substantive  matter  of  grant ;  and  can 
only  pass  as  such.  It  can  never  pass  as  incident  or  appurte- 
nant to  a  grant.  It  is  land,  and  land  cannot  be  incident  or  ap- 
purtenant to  land.  A  conveyance  of  one  acre  of  land  can 
never  be  made,  by  any  legal  construction,  to  carry  another 
acre  by  way  of  incident  or  appurtenance  to  the  first.  That 
land,  and  that  only,  which  is  expressly  embraced  in,  and  forms 
the  subject  matter  of  a  grant,  passes  under  it. 

The  two  grants  in  question  were  bounded  on  the  east  by  the 
shore  of  the  Genesee  river.  They  were,  therefore,  strictly 
limited  by  that  shore,  leaving  still  in  the  grantor,  now  repre- 


ALBANY,  DECEMBER,  1842.  393 


Child  r.  Starr. 


sented  by  the  plaintiffs  in  error,  the  bed  of  the  river  opposite 
the  lands  granted,  from  the  shore  to  the  thread  of  .the  stream. 
This  latter  constitutes  the  premises  in  controversy  in  this  case ; 
and  to  which  the  defendants  in  error  have  shown  no  title,  nor 
any  right  of  recovery. 

The  judgment  of  the  supreme  court,  therefore,  so  far  as  it 
recognizes  such  title  or  right,  is  erroneous  and  should  be  re- 
versed. 

ROOT,  senator,  also  delivered  a  written  opinion  in  favor  of 

reversing  the  judgment  of  the  supreme  court. 

\ 

On  the  question  being  put,  <(  Shall  this  judgment  be  revers- 
ed ?"  the  members  of  the  court  voted  as  follows. 

For  reversal :  The  PRESIDENT,  the  CHANCELLOR,  and  Sena- 
tors CLARK,  ELY,  FRANKLIN,  PECK,  ROOT,  SCOTT,  STRONG, 
VARIAN  and  VARNEY — 11. 

For  affirmance  :    Senators  BARTLIT,  BOCKEE,  DENNISTON, 
DIXON,  HUNT,  JOHNSON,  NICHOLAS,  PLATT,  RUGER  and  WORKS 
-10. 

Judgment  reversed. 


384  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  ».  The  People. 


PUBDY  vs.  THE  PEOPLE. 

The  clause  of  the  constitution  of  this  state,  (Art.  7,  §  9,)  requiring  the  assent  of 
two-thirds  of  the  members  elected  to  each  branch  of  the  legislature  to  the  pas- 
sage of  every  bill  creating,  continuing,  altering  or  renewing  any  body  politic  or 
corporate,  extends  to  all  corporations  properly  so  called,  whether  they  be  pub. 
lie  or  private. 

The  act  of  May  14th,  1840,  (Sess.  Laws  of  1840,  p.  257,)  excluding  aldermen  of 
the  city  of  New- York  from  the  right  of  sitting  as  judges  of  the  court  of  general 
sessions,  is  one  for  altering  the  charter  of  that  city;  and,  not  having  received 
the  assent  of  two-thirds  of  the  members  elected  to  each  branch  of  the  legislature, 
it  is  void. 

For  the  purpose  of  ascertaining  whether  an  act  was  passed  as  a  majority  bill  mere- 
ly, or  by  a  vote  of  two-thirds,  courts  may  look  beyond  the  printed  statute  book 
to  the  certificate  upon  the  original  engrossed  bill  on  file  with  the  secretary  of 
state.  Per  WALWORTH,  chancellor,  and  PAIGE  and  FRANKLIN,  senators. 

The  certificate  of  the  secretary  of  state  endorsed  upon  the  bill  -pursuant  to  1  R.  S. 
157,  §  11,  is  not  evidence  that  it  was  passed  by  a  vote  of  two-thirds ;  at  all 
events,  it  is  not  conclusive.  Per  WALWORTH,  chancellor. 

If  the  bill  be  not  certified  by  the  presiding  officers  of  the  two  houses  respectively, 
in  the  mode  pointed  out  by  1  R.  S.  156,  §  3,  it  must  be  deemed,  prima  facie 
at  least,  to  have  been  passed  by  a  vote  of  less  than  two-thirds.  Semble ;  per 
WALWORTU,  chancellor,  and  PAIGE  and  FRANKLIN,  senators. 

The  journals  kept  by  the  two  houses  of  the  legislature  may  be  resorted  to  in  ascer- 
taining whether  an  act  was  passed  by  a  vote  of  two-thirds.  Semble ;  per  PAIGE 
and  FRANKJUN,  senators. 

Towns  and  counties  were  not  corporations  in  any  sense,  when  the  constitution  was 
adopted ;  nor  are  they  more  than  quasi  corporations  even  now.  Per  PAIGE, 
senator. 

Forced  and  doubtful  interpretations  of  the  language  of  the  constitution,  as  contra- 
distinguished from  its  more  natural  and  popular  import,  are  not  to  be  encouraged 
or  upheld.  Per  PAIGE,  SCOTT  and  ROGER,  senators. 

The  clause  in  the  constitution  (Art .  4,  §  7,)  requiring  judicial  officers  to  be  appoint- 
ed by  the  governor  and  senate,  does  not  affect  the  right  previously  vested  in  the 
aldermen  of  the  city  of  New- York  to  sit  as  judges  of  the  court  of  general  ses- 
eions.  Per  WALWORTH,  chancellor,  and  SCOTT,  senator 

ON  error  from  the  supreme  court.  The  question  arose  upon 
an  information  in  the  nature  of  a  quo  warranto  against  Purdy, 
the  plaintiff  in  error,  for  exercising  the  office  of  judge  of  the 
court  of  general  sessions  in  and  for  the  city  and  county  of  New- 


ALBANY,  DECEMBER,  1842.  335 

Purdy  ».  The  People. 

York.  Judgment  was  rendered  in  favor  of  the  people  by  the 
court  below.  The  proceedings  in  that  court,  together  with  the  ma- 
terial facts  of  the  case,  will  be  found  reported  in  2  Hilly  31  ei  teq. 

P.  Jl.  Cowdrey  fy  B.  F.  Butler ,  for  the  plaintiff  in  error,  re- 
lied mainly  upon  the  following  points  :  1.  On  a  true  construc- 
tion of  the  act  of  May  14th,  1840,  (Sess.  Laws  of  '40,  p.  257,) 
it  will  be  found  not  to  have  abrogated  those  parts  of  the  charter 
of  the  city  of  New-York,  and  of  the  acts  of  previous  legislatures, 
which  empowered  aldermen  to  sit  as  judges  of  the  court  of  gen- 
eral sessions.  The  only  way  in  which  such  a  result  can  be 
made  to  follow  from  it,  is  by  giving  effect  to  its  provisions 
beyond  what  the  language  requires.  This  cannot  be  done 
without  violating  an  established  rule  of  interpretation.  Repeals 
by  implication  are  not  to  be  favored  ;  especially  where  the  con- 
sequence will  be  an  abridgment  of  the  rights  and  immunities 
of  the  people.  (Vin.  Mr.  "  Statutes?  (E.  6,)  pi.  132;  Bac. 
Mr.  "  Statute?  (D.)  ;  2  Dwarr.  on  Stat.  673,4  ;  Foster's  case, 
11  Coke's  Rep.  63,  4  ;  Middleton  v.  Crofts,  2  Jitk.  675  ;  Mc- 
Cartee  v.  The  Orphan  rfssylum  Society,  9  Cowen,  506  ;  War- 
der v.  Arell,  2  Wash.  Rep.  296  fo.300  ;  Barry  v.  Mandell,  10 
John.  Rep.  563, 579, 580  ;  Cayuga  Bridge  Company  v.  Magee, 
2  Paige,  116;  S.  C.  on  appeal,  6  Wend.  85;  Salters  v.  To- 
bias, 3  Paige,  338  ;  Mitchell  v.  Halsey,  15  Wend.  241.)  The 
whole  effect  of  the  act  of  1840,  considered  in  connexion  with 
the  charter  as  it  previously  stood,  is,  to  enable  the  recorder  and 
the  two  judges  who  may  be  appointed  under  the  first  section,  to 
hold  the  court  of  general  sessions  without  the  presence  of  the 
aldermen  ;  but  the  latter  have  still  the  right  to  sit  as  members 
of  the  court,  if  they  choose  to  exercise  it.  (See  the  authorities 
above  cited,  and  also  Goldson  v.  Buck,  15  East,  377.) 

2.  But  if  the  act  of  1840  is  to  be  deemed  an  expression  of 
the  legislative  will,  that  aldermen  shall  no  longer  sit  as  judges 
in  the  court  of  general  sessions,  we  then  insist  it  is  void,  as 
being  repugnant  to  art.  4,  §  15  of  our  state  constitution.  This 
declares  that  all  "  officers  heretofore  elective  by  the  people, 

•VOL.  IV.  49 


386       CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

shall  continue  to  be  elected."  The  object  of  the  provision 
was,  not  to  secure  a  mere  nominal  privilege,  which  it  would 
be,  if  the  legislature  could  deprive  the  officer  of  his  authority 
to  act,  the  moment  the  people  have  chosen  him  ;  but  to  secure 
the  right  of  electing  such  officers  as  were  before  elective,  with 
the  same  general  powers  and  functions  as  formerly  exercised  by 
them.  On  any  other  construction,  the  provision  would  be  value- 
less ;  for  the  legislature  might  evade  it  at  pleasure. 

3.  The  act  of  1840,  if  construed  to  exclude  the  aldermen 
from  the  court  of  general  sessions,  is  an  act  for  altering  the 
charter  of  a  corporation  ;  and  not  having  been  passed  by  a  vote 
of  "  two-thirds  of  the  members  elected  to  each  branch  of  the 
legislature,"  as  required  by  the  constitution,  it  is  void  on  that 
ground.  (Const,  of  N.  Y.  Jirt.  7,  §  9.)  It  is  not  certified  in 
the  printed  volume  published  by  the  state  printer,  nor  in  the 
original,  to  have  been  passed  by  a  vote  of  two-thirds  ;  (1R.  S. 
156,  §  3  ;)  and  it  appears  by  the  journals  to  have  been  passed 
by  a  less  vote. 

G.  P.  Barker ,  (attorney  general,)  for  the  defendants  in  error, 
reviewed  the  positions  taken  by  the  counsel  for  the  plaintiff  in 
error,  and  stated  and  argued  the  following  points  :  1.  The 
city  of  New-York,  being  a  public  corporation,  is  subject,  as 
such,  to  the  control  of  the  legislature.  (Terrett  v.  Taylor ;  9 
Cranch,  52  ;  Mien  v.  McKeen,  1  Sumn.  Rep.  276  ;  Dartmouth 
College  v.  Woodward,  4  Wheat.  518  ;  The  People  v.  Purdy,  2 
Hill,  32  ;  Kent's  Charter,  161  ;  Coates  v.  The  Mayor  Sfc.  of 
New-York,!  Cowen,  585.)  2.  The  act  of  May  14th,  1840, 
(Sess.  L.  q/"'40,  p.  257,)  excludes  the  plaintiff  in  error,  by  ne- 
cessary implication,  from  the  right  of  sitting  as  a  judge  of  the 
general  sessions,  notwithstanding  his  election  as  alderman. 
(The  People  v.  Purdy,  2  Hill,  31.)  3.  That  act  is  neither 
within  the  letter  nor  the  spirit  of  art.  7,§  9,  of  the  constitution, 
requiring  a  two-third  vote  ;  (see  §  26  of  the  charter  of  1730  ; 
The  People  v.  Morris,  13  Wend.  325  j  Warner  v.  Beers,  126, 
186  ;  The  People  v.  Mayor  fyc.  of  New-York,  25  Wend.  680  ; 


ALBANY,  DECEMBER,  1842.  337 

Purdy  t>.  The  People. 

Assembly  Journ.  of  1812,  p.  7, 333  ;  Assembly  Journ.  of  1818, 
p.  5  ;)  nor  is  it  repugnant  to  §  15  of  art.  4  of  the  constitu- 
tion. 4.  The  certificate  of  the  secretary  of  state  stating  the 
day,  month  and  year  when  the  act  in  question  became  a  /ato,  is 
conclusive  evidence  of  a  compliance  with  all  the  forms  requi- 
site to  its  enactment,  and  precludes  any  enquiry  aliunde.  (1  R. 
S.  157,  §  10,  11;  id.  183,  4,<  Warner  v.  Beertj  23  Wend. 
167.) 

WALWORTH,  Chanccellor.  The  writ  of  error  in  this  case 
is  brought  for  the  purpose  of  settling  the  question  as  to  the 
right  of  the  aldermen  of  the  city  of  New- York  to  exercise 
the  duties  of  justices  of  the  peace  in  holding  the  court  of 
general  sessions  in  that  city,  under  the  act  of  the  14th  of 
May,  1840.  In  the  case  of  The  People  v.  The  Mayor  and  Al- 
dermen of  New-  York,  (25  Wend.  Rep.  9,)  where  the  question 
arose  as  to  the  right  of  those  officers  to  exercise  the  duties  of 
judges  of  the  court  of  common  pleas  under  the  provisions  of 
the  constitution  of  this  state,  I  endeavored  to  show  that  the 
aldermen  of  the  city  were,  at  the  adoption  of  the  new  constitu- 
tion, elective  judges  of  that  court,  and  were  therefore  embraced 
by  the  section  of  the  constitution  which  provided  that  all  offi- 
cers theretofore  elective  by  the  people  should  continue  to  be 
elected.  And  that  this  section,  therefore,  as  to  these  officers, 
formed  an  exception  to  the  clause  of  the  constitution  requiring 
all  judicial  officers,  except  justices  of  the  peace,  to  be  appoint- 
ed by  the  governor  with  the  consent  of  the  senate,  and  that 
judges  of  the  county  courts  should  hold  their  offices  for  five 
years  ;  in  the  same  manner  that  another  section  making  certain 
elective  officers  ex  ojficio  members  of  this  court,  was  an  excep- 
tion to  the  general  provision  as  to  the  mode  of  appointing  judi- 
cial officers.  I  then  showed,  by  a  reference  to  the  city  charter 
that  the  aldermen  of  New-York  had  not  only  been  justices  of 
the  peace,  but  also  elective  judges  of  the  court  of  common 
pleas  or  mayor's  court,  for  more  than  a  century  and  a  half. 
And  that  the  term  alderman  had  been  used  to  designate  an  offi- 


388      CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

M — - 

cer  having  judicial  as  well  as  civil'  power,  in  England,  for  a 
period  which  extended  back  even  beyond  the  Norinan  conquest. 
I  may  now  add,  that  the  introduction  of  the  laws  df  Normandy 
into  England  was  not  likely  to  deprive  the  aldermen  of  their 
judicial  powers ;  for  a  similar  class  of  elective  judicial  and  mu- 
nicipal officers  had  existed  in  the  cities  of  France,  under  the 
name  of  EchevinSj  or  aldermen,  from  the  earliest  period  of  the 
French  history.  And  their  election  by  the  citizens  to  discharge 
such  duties  was  recognized  in  the  capitularies  or  statutes  of 
Charlemagne.  (6  Guyotfs  Repert.  599  •  Merlin's  Repert.  Jlrt. 
Echevins,}  But  as  the  judgment  of  the  supreme  court  was 
affirmed  here  by  a  tie  vote,  the  right  of  the  mayor  and  aldermen 
of  New-York  to  sit  as  judges  of  the  county  or  mayor's  court 
of  that  city  is  still  undecided  by  this  court. 

That  question,  however,  does  not  arise  in  the  present  case  ; 
for  the  aldermen  never  claimed  the  right  to  sit  in  the  courts  of 
general  and  special  sessions  of  the  peace  as  judges  of  the  coun- 
ty court ;  but  in  their  character  of  justices  of  the  peace  of  the 
city  of  New- York.  And  in  the  case  of  Clark  v.  The  People, 
(26  Wend.  Rep.  599,)  this  court  almost  unanimously  decided  that 
the  clause  in  the  constitution  requiring  judicial  officers  to  be  ap- 
pointed by  the  governor  with  the  consent  of  the  senate  did  not 
apply  to  justices  of  the  peace  in  cities.  The  courts  of  general 
and  special  sessions  of  the  peace  throughout  the  state  were,  at 
the  adoption  of  that  constitution,  holden  by  judicial  officers  in 
their  characters  of  justices  of  the  peace  only  ;  the  judges  of 
the  courts  of  common  pleas  having  a  distinct  commission  for 
that  purpose  in  the  general  commission  of  the  peace  for  each 
county.  The  courts  of  common  pleas  only  were  called  coun- 
ty courts  at  that  time.  And  though  the  courts  of  oyer  and  ter- 
miner  and  the  courts  of  general  sessions  of  the  peace  were  in 
fact  county  courts,  I  do  not  believe  the  framers  of  the  constitu- 
tion intended  to  declare  that  the  judges  of  these  two  courts 
should  hold  their  offices  for  five  years.  That  the  first  legisla- 
ture which  assembled  under  the  new  constitution  did  not  so  un- 
derstand it,  is  evident  from  the  fact  that  they  authorized  courts 


ALBANY,  DECEMBER,  1842.  339 
Pnrdy  t>.  The  People. 

of  general  sessions  of  the  peace  to  be  holden,  in  certain  cases, 
by  justices  of  the  peace  ;  and  courts  of  oyer  and  terminer  in 
New-York  to  be  holden  by  aldermen.  I  have  no  doubt,  there- 
fore, of  the  power  of  the  legislature  to  direct  courts  of  oyer  and 
terminer,  and  courts  of  general  and  special  sessions  of  the  peace, 
to  continue  to  be  held  by  the  same  class  of  judicial  officers ; 
although  they  do  not  all  of  them  now  derive  their  authority  to 
act  as  justices  of  tlie  court  of  oyer  and  terminer  or  of  general 
sessions,  by  an  appointment  of  the  governor  and  senate.  That 
the  existence  of  such  a  piower  was  not  doubted  by  those  who 
voted  for  the  act  of  May,  1840,  for  the  better  organization  of 
the  criminal  courts  of  the  city  and  county  of  New-York,  is 
evident  from  the  fact  that  the  third  section  of  that  act  not  only 
authorizes,  but  makes  it  the  duty  of  two'  of  the  aldermen  to  at- 
tend with  the  recorder,  or  one  of  the  judges,  for  the  purpose 
of  holding  a  court  of  special  sessions  of  the  peace  for  the  trial 
of  a  certain  class  of  criminal  offences ;  which  court  of  special 
sessions  is  as  much  a  county  court  as  the  court  of  oyer  and  ter- 
miner or  general  sessions,  although  it  is  restricted  in  its  juris- 
diction to  the  trial  of  minor  offences  only.  Any  other  construc- 
tion of  the  constitution,  indeed,  would  render  inoperative  and 
void  the  provisions  of  the  revised  statutes  which  authorize  jus- 
tices of  the  peace  to  hold  courts  of  special  sessions  in  other 
parts  of  the  state,  or  to  be  associated  with  a  county  judge  in 
forming  a  court  of  general  sessions  in  the  absence  of  a  quorum 
of  the  judges  of  the  court  of  common  pleas.  (See  2  JR.  S.  208, 
§  4  ;  Id.  224,  §  3.)  The  courts  of  general  and  special  ses- 
sions in  the  city  of  New- York,  in  which  aldermen  of  the  city, 
in  their  characters  of  justices  of  the  peace,  were  associated 
•with  the  mayor,  recorder,  or  the  first  judge,  or  an  associate 
judge  of  the  court  of  common  pleas,  appear,  therefore,  to  have 
been  legally  and  constitutionally  organized,  previous  to  the 
act  of  May,  1840.  And  it  remains  to  be  considered,  whether 
that  act  has  been  constitutionally  passed,  and,  if  so,  whether  it 
has,  either  in  terms  or  by  necessary  implication,  deprived  the 
aldermen  of  the  city  of  the  power  which  they  had  before  pos- 


390  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

essedj  from  the  time  of  the  granting  of  governor  Dongan's 
charter  in  1686,  of  being  justices  of  the  peace  and  associate 
justices  in  the  court  of  general  sessions  of  the  peace  for  the 
city.  (See  Charter  of  1686,  §  9.) 

As  the  fact,  that  the  act  of  May,  1840,  was  not  passed  by  a 
vote  of  two-thirds  of  the  members  elected  to  each  branch  of  the 
legislature,  was  conceded  by  the  attorney  general  upon  the  ar- 
gument of  this  case  in  the  court  below,  it  is  not  necessary 
here  to  inquire  in  what  way  the  question  whether  a  law  re- 
quiring a  vote  of  two-thirds  has  been  passed  by  a  constitutional 
majority,  is  to  be  tried  or  determined.  I  am  inclined  to  think, 
however,  Justice  Bronson  is  right  in  supposing  that,  to  give  full 
effect  to  the  provision  of  the  constitution  requiring  a  vote  of 
two-thirds  of  the  members  of  each  house  to  pass  certain  stat- 
utes, courts  must  look  behind  the  printed  statute  book,  in  some 
way,  for  the  purpose  of  ascertaining  whether  this  constitutional 
provision  has  been  complied  with  j  and  that  the  certificate  of 
the  secretary  of  state  cannot  be  considered  as  conclusive  upon 
the  question  that  the  law  was  passed  by  a  constitutional  major- 
ity. For  it  could  never  have  been  the  intention  of  the  legisla- 
ture to  give  to  the  secretary  of  state  the  exclusive  right  of  de- 
ciding whether  any  of  the  provisions  of  a  statute,  which  had 
been  passed  by  a  majority  vote  only,  required  a  vote  of  two- 
thirds.  The  certificate  which  the  secretary  is  required  to  en- 
dorse upon  the  bill,  relates  rather  to  the  time  when  such  bill 
became  a  law,  than  to  the  fact  that  it  was  passed  by  a  constitu- 
tional vote  of  two-thirds  ;  when  all  or  any  of  its  provisions  re- 
quire that  it  should  be  passed  by  such  a  vote.  And  the  re- 
vised statutes  having  only  declared  the  certificate  of  the  secre- 
tary to  be  conclusive  evidence  of  the  facts  contained  therein, 
if  he  does  not  certify  that  it  was  passed  by  two-thirds  of  the 
members  elected  to  each  branch  of  the  legislature,  his  certifi- 
cate is  not  evidence  that  it  was  so  passed  ;  when  such  an  in- 
quiry becomes  material  in  reference  to  the  validity  of  any  of 
the  provisions  of  the  law.  The  legislature  has  declared  by  law 
that  no  bill  shall  be  deemed  to  have  passed  by  a  two-third  vote 


ALBANY,  DECEMBER,  1842. 


Purdy  c.  The  People. 


unless  it  is  so  certified  by  the  presiding  officer  of  each  house. 
And  I  am  inclined  to  the  opinion  that  such  a  certificate,  rather 
than  the  certificate  of  the  secretary  of  state  specifying  the  time 
when  the  law  was  passed,  is  to  be  considered  the  only  legal 
evidence  that  the  bill  was  in  fact  passed  with  the  assent  of  two- 
thirds  of  all  the  members  elected  to  each  branch  of  the  legisla- 
ture. (See  1  R.  S.  156,  §3.) 

The  question  whether  the  legislature  can,  by  a  majority  vote, 
enlarge,  alter,  or  abridge  the  political  powers,  rights,  or  privi- 
leges of  a  municipal  corporation,  is  one  upon  which  judges  as 
well  as  legislators  have  frequently  differed.  And  notwithstand- 
ing the  elaborate  argument  of  the  counsel  who  opened  this  case, 
and  the  very  able  opinion  delivered  by  Mr.  Justice  Bronson  in 
the  court  below,  I  still  adhere  to  the  opinion  expressed  by  me 
in  this  court  in  the  case  of  Warner  v.  Beers,  (23  Wend.  Rep. 
126,)  that  such  legislation  is  not  within  the  mischief  which  this 
provision  of  the  constitution  was  intended  to  guard  against  j 
and  therefore  was  not  in  the  contemplation  of  the  convention 
which  framed  this  restriction,  nor  of  the  people  of  the  state 
who  adopted  it.  I  therefore  think  the  act  of  May  1840,  was 
constitutionally  passed  by  a  majority  vote  ;  although  it  does 
alter  and  to  a  certain  extent  abridge,  the  political  rights  of  the 
corporators  in  this  municipal  corporation.  For  I  admit  that 
the  election  of  their  own  magistrates  has  from  time  immemo- 
rial been  considered  by  municipal  corporations  as  an  important 
political  right.  Most  of  the  charters  of  municipal  corporations 
in  England,  secured  to  the  corporators  that  right,  to  a  greater 
or  less  extent.  And  it  was  to  deprive  the  corporators  of  Lon- 
don of  such  right,  that  Charles  the  second  caused  the  proceed- 
ings upon  a  quo  warranto  to  be  instituted  against  them  ;  to 
enable  him  to  control  judicial  proceedings  within  the  city  by 
destroying  its  charter  of  incorporation. 

Having  arrived  at  the  conclusion  that  the  legislature  had  the 
constitutional  power  to  pass  the  act  of  May  1840,  by  a  majori- 
ty vote,  without  expressing  any  opinion  as  to  the  justice  or  ex- 
pediency of  thus  interfering  with  chartered  rights  without  the 


392  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

consent  of  the  corporation,  with  which  question,  as  a  court, 
we  have  nothing  to  do,  I  will  proceed  to  examine  the  ques- 
tion to  which  the  counsel  who  last  addressed  the  court,  con- 
fined his  argument.  Does  the  act  of  1840,  either  in  terms  or 
by  necessary  implication,  deprive  the  aldermen  of  the  right, 
which  was  secured  to  them  by  the  charter  of  the  city,  to  sit  as 
justices  of  the  peace  in  the  court  of  general  sessions,  in  con- 
nection with  the  recorder  and  the  judges  whose  appointment 
is  provided  for  by  that  act  1 

It  is  a  general  rule  that  statutes  in  the  affirmative  do  not  re- 
peal or  take  away  precedent  acts  or  rights  affirmative.  Hence 
it  was  insisted,  by  the  counsel  for  the  plaintiffs  in  error  who 
last  addressed  us,  that  the  act  of  1840,  did  not  in  terms  take 
away  from  the  aldermen  the  right,  which  they  before  had,  to 
sit  in  the  court  of  general  sessions.  The  5th  section  of  the 
act,  abolishing  the  per  diem  allowance  which  had  been  pre- 
viously allowed  to  aldermen  while  sitting  in  that  court,  also 
seemed  to  favor  the  conclusion  that  the  legislature  did  not  in- 
tend to  deprive  the  aldermen  of  the  right  to  sit  and  act  as  mem- 
bers of  the  court  in  connection  with  the  recorder  and  judges, 
if  they  thought  proper  to  do  so  without  compensation.  For 
there  appears  to  have  been  no  reason  for  declaring  by  statute 
that  the  aldermen  should  not  receive  a  per  diem  allowance  for 
discharging  their  duties  as  members  of  the  court,  if  it  was  the 
intention  of  the  legislature  to  deprive  them  absolutely  of  the 
power  to  sit  or  act  as  such  members  under  any  circumstances. 
The  first  section  of  the  act,  however,  appears  to  have  been 
framed  with  a  view  to  exclude  the  mayor  and  aldermen  of  the 
city  from  sitting  in  the  court,  altogether.  While  the  10th  sec- 
tion has,  in  a  most  unaccountable  manner,  associated  the  mayor 
with  the  recorder  and  the  other  two  judges  of  that  court  and 
the  county  judges,  as  a  board  of  officers  for  the  appointment 
of  the  district  attorney  ;  and  this  too,  in  direct  violation  of 
the  provision  of  the  constitution  which  directs  that  district  at- 
torneys shall  be  appointed  by  the  county  courts.  But  what- 
ever construction  might  be  put  upon  other  provisions  of  this 


ALBANY,  DECEMBER,  1842.  393 

Pordy  e.  Tho  People. 

act,  it  will  be  seen,  by  referring  to  the  last  section,  that  all  the 
provisions  of  the  revised  statutes  which  authorized  the  mayor 
or  aldermen  to  sit  and  act  as  members  of  the  court  of  general 
sessions,  are  in  terms  repealed.  And  the  general  repealing  act, 
of  the  10th  of  December,  1828,  had  before  repealed  all  other 
statutes  on  the  subject.  It  is  true  the  charter  of  1730  remains 
as  it  was  before  it  was  altered  by  the  acts  which  are  thus  re- 
pealed. But  the  26th  section  of  that  charter,  which  author- 
ized the  mayor,  recorder  and  aldermen,  to  hold  courts  of  gener- 
al sessions  of  the  peace  quarter-yearly,  for  a  term  not  exceed- 
ing four  days,  would  not  authorize  the  mayor  and  aldermen  to 
sit  in  the  courts  of  general  sessions,  with  the  recorder  and  as- 
sociate judges,  as  organized  by  the  act  of  May,  1840  ;  which 
courts  are  to  commence  on  a  different  day  of  the  week,  and  to 
continue  four  weeks,  instead  of  four  days.  The  result  is,  that 
the  act  of  1840  has  absolutely  deprived  the  mayor  and  alder- 
men of  New-York  of  the  power  that  they  had  before  exercised 
and  enjoyed,  of  sitting  in  the  court  of  general  sessions  of  the 
peace,  as  justices  thereof.  I  am  therefore  compelled  to  vote 
to  sustain  the  decision  of  the  majority  of  the  justices  of  the  su- 
preme court.  For  the  fact  that  one  of  the  sections  of  the  act 
of  May,  1840,  is  admitted  to  be  in  direct  conflict  with  the  pro- 
visions of  the  constitution,  does  not  render  the  other  parts  of 
that  act  inoperative  and  void. 

PAIGE,  Senator.  The  principal  question  in  the  present  case 
is,  whether  the  act  entitled  "  An  act  for  the  better  organization 
of  the  criminal  courts  in  the  city  of  New- York,"  passed  May  14th, 
1840,  comes  within  the  9th  section  of  article  7th  of  the  constitu- 
tion of  this  state,  requiring  the  assent  of  two-thirds  of  all  the 
members  elected  to  each  branch  of  the  legislature  for  the 
passage  of  every  bill  creating,  continuing,  altering  or  renewing 
any  body  politic  or  corporate.  It  is  not  denied  that  the  city  of 
New-York  is  a  body  politic  and  corporate  j  and  I  think  it  cannot 
be  denied  that  the  act  in  question,  if  constitutionally  passed,  alters 
the  charter  of  that  city.  The  power  to  hold  courts  of  general 

VOL.  IV.  50 


394  CASES  IN  THE  COURT  OF  ERRORS. 

; — ; , 

Purdy  v.  Tho  People. 

sessions  of  the  peace  in  and  for  the  city  and  county  of  New- 
York,  was  a  franchise  vested  in  the  corporation  by  the  charter 
of  1730,  to  be  exercised  by  the  mayor,  deputy-mayor,  recorder 
and  aldermen  j  and  the  act  of  May,  1840,  by  taking  from  the 
aldermen  their  right  to  sit  as  judges  in  that  court,  so  far  alters 
the  body  politic  and  deprives  it  of  this  franchise. 

The  act  was  passed  as  a  mere  majority  bill.  This  appears 
from  an  examination  of  the  journals  of  the  senate  and  assembly, 
and  from  an  inspection  of  the  original  bill  on  file  in  the  office 
of  the  secretary  of  state.  The  latter  is  certified  by  the  pre- 
siding officers  of  the  two  houses  respectively,  in  the  usual  form 
of  certifying  majority  bills.  The  revised  statutes  expressly 
declare,  that  "  no  bill  shall  be  deemed  to  have  been  passed  by 
the  assent  of  two-thirds  of  the  members  elected  &c.,  unless  so 
certified  by  the  presiding  officer  of  each  house."  (1  R.  S. 
156,  ^  3.)  We  have  a  right  I  think  to  go  behind  the  printed 
statute  book  in  order  to  ascertain  whether  bills  have  been  con- 
stitutionally passed.  Judges,  who  are  bound  to  take  notice  of 
a  public  act,  must  determine  this  question  by  an  inspection  of 
the  record  ;  for  nul  tiel  record  cannot  be  pleaded  to  a  statute. 
(Dwarr.  on  Stat.  630,  665  ;  Com.  Dig.  lit.  "  Parliament ," 
(R.  5  ;)  The  Prince's  case,  8  Coke's  Rep.  28 ;  Rex  v.  Robotham. 
3  Burr.  1472.)  This  was  the  opinion  of  Senator  Verplanck, 
and  President  Bradish,  as  expressed  by  them  in  the  case  of  War- 
ner v.  Beers,  (23  Wend.  103  ;)  and  Mr.  Justice  Bronson  ar- 
rived at  a  like  conclusion  in  the  present  case  when  it  was  be- 
fore the  supreme  court* 

The  principal  question  then  recurs  :  Does  the  act  of  May 
1840  come  within  the  9th  section  of  the  7th  article  of  the  con- 
stitution 1  The  language  of  the  clause  is,  "  The  assent  of  two- 
thirds  of  the  members  elected  to  each  branch  of  the  legislature, 
shall  be  requisite  to  every  bill  creating,  continuing,  altering  or 
renewing,  any  body  politic  or  corporate."  I  have  already 
stated  it  as  my  opinion  that  the  act  is  one  altering  the  charter 
of  a  corporation  ;  an  act  which,  if  sanctioned  by  us  and  carried 
I  into  effect,  must  result  in  depriving  the  city  of  New- York  of  an 


ALBANY,  DECEMBER,  1842.  395 


Purdy  v.  The  People. 


essential  portion  of  its  franchises.  If  this  be  conceded,  there 
would  seem  to  me  to  be  no  necessity  for  further  enquiry  in  the 
present  case.  Not  having  received  the  assent  of  two-thirds  of 
the  members  elected  to  each  branch  of  the  legislature,  the  act 
in  question  belongs  to  that  species  of  irregular  legislation  which 
the  constitution  has  expressly  forbidden.  It  is  therefore  ut- 
terly void. 

But  it  has  been  said  that  this  clause  in  the  constitution  does 
not  extend  to  public,  but  only  to  private  corporations.  Its 
terms,  however,  are  comprehensive,  explicit  and  unambiguous. 
They  express,  with  a  distinctness  and  force  which  to  my  mind 
is  irresistible,  an  intention  to  include  all  corporations,  whether 
public  or  private.  Nor  is  any  thing  to  be  found  in  other 
parts  of  the  instrument  tending  in  the  remotest  degree  to 
qualify  the  language,  or  restrain  the  universality  of  its  applica- 
tion. What  right  then  have  we,  who  are  obligated  to  maintain 
the  constitution,  to  recognize  and  act  upon  an  exception  which 
its  framers  have  virtually  told  us  they  designed  to  exclude  ;  to 
interpolate  words  which  they  have  omitted,  or  subvert  the  plain 
meaning  of  those  they  have  introduced  1  At  the  period  of  the 
adoption  of  the  constitution,  and  for  a  long  time  previous,  there 
were  in  this  state  public  corporations  as  well  as  private — a  fact 
familiar  to  every  member  of  the  convention.  If  they  had  in- 
tended to  exclude  public  corporations  from  the  operation  of 
the  section  under  consideration,  they  knew  how  to  express  that 
intention,  and  would  have  done  so. 

It  was  said,  in  argument,  that  public  corporations,  such  as 
cities  and  villages,  are  neither  within  the  object,  intent  or  mis- 
chief of  this  provision  of  the  constitution  j  and  it  was  asked, 
whether  such  was  the  case  with  respect  to  towns  and  counties  ? 
These,  however,  were  not  corporations  at  the  time  of  the  adop- 
tion of  the  constitution  ;  nor  are  they  corporations  even  now,  in 
the  proper  sense  of  that  term.  They  are  only  quasi  corpora- 
tions, and  were  made  such  by  the  revised  statutes.  (See  Re- 
visers1 Notes,  3  R.  S.  482,  490  j  2  Kent's  Comm.  278 ;  Jack- 
son v.  Hartwell,  8  John.  Rep.  422  ;  Hornbeck  v.  Westbrook,  9 


396  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

id.  73.)  I  am  aware  of  the  case  of  North  ftempstead  v.  Hemp- 
stead,  (1  Hopk.  Ch.  Rep.  288,)  in  which  Chancellor  Sanford 
said,  that  the  towns  of  this  state  were  bodies  politic  of  a  spe- 
cial character,  with  limited  powers ;  and  that,  as  such,  they 
had  capacity  to  hold  property.  But  his  opinion  goes  no  fur- 
ther than  to  maintain,  that  where  lands  are  granted  to  a  town, 
by  patent  from  the  sovereign  source  of  power,  such  patent  cre- 
ates it  a  body  politic  for  the  purpose  of  holding  and  managing 
the  lands.  Previous  to  the  revised  statutes  it  was  repeatedly 
adjudged  that  towns  and  counties,  as  such,  were  not  corpora- 
tions. Accordingly,  in  Jackson  v.  Cory,  (8  John.  Rep.  385,) 
it  was  held,  that  the  people  of  a  county,  not  being  a  corporate 
body  known  to  the  law,  could  not  take  by  grant  from  an  indi- 
vidual. The  same  thing  was  virtually  held  in  the  subsequent 
case  of  Hornbeck  v.  Westbrook,  (9  John.  Rep.  73,)  with  re- 
spect to  a  grant  to  the  people  of  a  town.  As  towns  and  coun- 
ties, therefore,  were  not  even  corporations  sub  modo,  at  the 
time  of  framing  the  constitution,  it  is  impossible  that  any  ar- 
gument applicable  to  the  present  case  can  be  derived  from  the 
supposed  inconvenience  of  subjecting  them  to  the  influence  of 
the  clause  in  question. 

The  learned  chief  justice  of  the  supreme  court  in  The  People 
v.  Morris,  (13  Wend.  325,)  and  again  in  The  People,  ex  rel. 
Lynch,  v.  The  Mayor  fyc.  of  New-York,  (25  Wend.  684,)  has 
stated  the  distinction  between  public  and  private  corporations. 
In  the  latter  case,  he  said,  that  a  public  corporation  relates  ex- 
clusively to  the  public  concerns  of  the  corporators,  and  "  is  the 
embodyment  of  political  power  for  the  purposes  of  public  gov- 
ernment ;"  while  a  private  corporation,  he  further  observed, 
"  relates  to  the  private  rights  and  interests  of  the  corporators" 
&c.  It  may  be  admitted  that  public  corporations  are  not  only 
useful  instruments  for  the  local  government  of  dense  popula- 
tions, but  that  they  are  in  most  cases  entirely  unobjectionable. 
This  admission,  however,  does  not  advance  us  one  step  in  the 
demonstration  that  they  are  not  within  the  meaning  of  the  two- 
third  clause  in  the  constitution.  The  phraseology  of  that  clause 


ALBANY,  DECEMBER,  1842.  397 

Purdy  v.  The  People. 

is  so  clear,  and  at  the  same  time  so  broad,  that  no  one  pretends  it 
does  not  embrace  public  as  well  as  private  corporations.  Upon 
what  principle  then,  are  we  authorized  to  say  that  the  intent  was 
different  from  what  the  words  themselves  plainly  import? 
How  can  we  know  but  that  some  members  of  the  convention 
were  unfriendly  to  the  general  course  of  previous  legislation 
in  regard  to  the  chartering  of  cities  and  villages  ;  and  therefore 
intended  to  subject  all  future  legislation  on  that  subject  to  the 
influence  of  this  fundamental  law  1  They  may  have  thought 
some  such  restraint  upon  the  legislature  was  important  to  pro- 
tect the  people  of  the  country  towns  from  certain  extraordina- 
ry powers  usually  granted  to  municipal  corporations  ;  as  for  ex- 
ample, the  power  of  regulating  the  markets,  thus  enabling  them 
to  interfere  with  the  freedom  of  trade. 

But  it  appears  from  the  debates  in  the  convention,  that  the 
framers  of  the  constitution  adopted  the  clause  in  question  with 
the  distinct  understanding  that,  as  it  now  stands,  it  would  em- 
brace public  corporations.  To  the  objection  there  made  that 
the  clause,  in  terms,  required  a  vote  of  "  two-thirds  of  the  legis- 
lature to  incorporate  a  village,  bridge  or  turnpike,"  it  was  an- 
swered, that  "  two-thirds  would  never  be  wanting  to  incorpo- 
rate a  village  or  a  turnpike  ;"  whereupon  an  amendment  limit- 
ing the  clause  to  "  bank  or  moneyed  institutions,"  which  had 
been  previously  proposed,  was  withdrawn,  and  the  section  in 
its  present  form  unanimously  adopted.  (Carter  fy  Stone's 
Debates  in  Conv.  446.)  Thus  we  are  furnished  with  unequivo- 
cal affirmative  evidence  that  the  framers  of  the  constitution 
intended,  not  to  exclude  public  corporations,  but  to  include 
them. 

If  it  be  allowed  us  to  disregard  the  plain  language  of  the 
constitution,  and  to  go  out  of  it  in  search  of  some  conjectural 
intent  of  its  framers  which  the  words  themselves  do  not  ex- 
press, we  should  be  giving  to  the  clause  under  consideration 
too  broad  a  construction,  in  the  opinion  of  many,  were  we  to 
declare  even  that  it  includes  all  private  corporations.  The 
mischief  intended  to  be  guarded  against,  it  has  been  said,  was 


398  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

the  too  rapid  multiplication  of  bank  charters,  and  the  legisla- 
tive corruption  which  their  creation  induced.  Now,  following 
the  guidance  of  those  who  entertain  this  opinion,  we  should 
perhaps  be  bound  to  give  such  a  construction  to  the  provision 
as  would  exclude  from  its  influence  every  private  corporation, 
except  those  authorized  to  carry  on  the  business  of  banking. 
And  thus,  not  only  public  corporations,  but  also  all  turnpike, 
bridge,  canal,  rail-road,  religious,  insurance,  manufacturing, 
literary  and  eleemosynary  corporations,  would  be  excluded  from 
the  operation  of  this  clause  of  the  constitution  ;  yet  all  these 
are  private,  except  literary  and  eleemosynary  corporations, 
and  even  they  are  so  when  founded  and  endowed  by  pri- 
vate benefactors.  (2  Kent's  Com.  275,  4M  ed.)  It  requires  no 
gift  of  prophecy  to  foretell  the  results  which  must  flow  from 
such  a  course  of  adjudication  by  this  court.  Already  have  we, 
by  lending  too  unguarded  an  ear  to  arguments  in  favor  of  a 
latitudinarian  mode  of  interpreting  the  constitution,  struck  out 
from  the  operation  of  the  two-third  clause,  the  identical  corpo- 
rations which  are  now  admitted  by  every  one  to  be  within  the 
evil  intended  to  be  remedied.  The  case  of  Warner  v.  Beers, 
(23  Wend.  103.)  consummated  this  judicial  miracle  : — and  if, 

\  //  **  * 

countenancing  another  of  these  untoward  attempts  to  free  the 
legislature  from  the  restraints  of  fundamental  law,  we  declare 
in  the  present  case  that  all  public  corporations  are  also  to  be 
excluded  from  the  operation  of  the  section,  it  may  as  well  be 
pronounced  a  dead  letter  at  once.  For  one,  I  cannot  consent 
to  "  palter  in,  a  double  sense"  with  any  part  of  the  constitution  ; 
especially  not,  with  the  section  under  consideration.  Through 
no  agency  of  mine  shall  it  be  made  to  ll  keep  the  word  of 
promise  to  the  ear,  and  break  it  to  the  hope."  I  trust 
that,  in  reference  to  the  present  case,  this  court  will  not  hesi- 
tate to  array  itself  in  favor  of  the  old  and  revered  doctrine  of 
strict  construction — the  only  sound  and  safe  doctrine  for  the 
governance  of  either  judges  or  legislators.  If  courts  are 
allowed  to  depart  from  it,  and  venture  upon  the  perilous 


ALBANY,  DECEMBER,  1842.  399 

Purdy  t>.  The  People. 

experiment  of  substituting,  for  the  clear  language  of  the  in- 
strument, their  own  notions  of  what  it  ought  to  have  been 
or  what  its  framers  intended,  there  will  be  an  end  of  written 
constitutions,  and  of  all  attempts  to  fix  limits  to  legislative  and 
judicial  power. 

In  this  case,  it  appears  to  me,  there  can  be  no  room  for 
doubt,  either  as  to  the  meaning  of  the  words  used  in  the  consti- 
tution, or  as  to  the  intention  of  its  framers.  And  to  confirm 
the  views  already  expressed,  I  will  add,  that  the  entire  current 
of  legislative  precedent  since  the  constitution  went  into  effect, 
has  been  against  the  doctrine  I  have  been  combating.  I  do  not 
now  recollect  an  instance,  during  the  period  of  my  connection 
with  either  branch  of  the  legislature,  where,  on  a  bill  creating 
or  altering  the  charter  of  a  city  or  village,  the  question  on  its 
final  passage  was  not  put  as  upon  a  two-third  bill.  Some  cases 
may  have  arisen  where  it  was  questioned  whether  the  bill  did 
in  fact  purport  to  alter  the  charter  of  a  body  politic  or  corpo- 
rate ;  and  if  the  conclusion  arrived  at  was  that  it  did  not,  it 
was  probably  treated  as  a  majority  bill.  There  have  been 
general  statutes  passed  in  this  manner,  affecting  all  persons,  as 
well  natural  as  artificial ;  e.  g.  tax  laws,  and  laws  regulating 
the  internal  police  of  the  state.  But  no  case  has  occurred 
under  the  new  constitution  where  a  bill  has  been  passed  as  a 
majority  bill,  on  the  concession  being  made  that  it  proposed 
either  to  create,  continue,  alter  or  renew  any  particular  public 
corporation. 

If,  as  has  been  contended  in  the  present  case,  the  act  of  May 
14th,  1840,  does  not  take  away  the  right  of  aldermen  of  the 
city  of  New- York  to  sit  as  judges  of  the  court  of  general  ses- 
sions, then  there  has  been  no  usurpation  by  the  plaintiff  in 
error.  But  if  otherwise,  then  the  act  is  void,  because  it  did  not 
receive  the  assent  of  two-thirds  of  the  members  elected  to  each 
branch  of  the  legislature.  In  either  view,  the  plaintiff  in  error 
is  entitled  to  judgment,  and  the  judgment  of  the  supreme  court 
should  be  reversed. 


400  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

FRANKLIN,  Senator.  The  twenty-sixth  section  of  the  char- 
ter of  the  city  of  New-York,  granted  in  1730,  confers  upon 
aldermen  the  right  of  acting  as  members  of  the  court  of  gener- 
al sessions  of  the  peace,  by  the  following  grant :  "  And  further, 
we,  of  our  special  grace,  certain  knowledge,  and  meer  motion, 
have  given,  granted,  ratified  and  confirmed,  and  by  these  pres- 
ents do,  for  us,  our  heirs,  and  successors,  give,  grant,  ratify,  and 
confirm  unto  the  said  mayor,  aldermen,  and  commonalty  of 
the  city  of  New-York,  and  to  their  successors  forever,  &c. 
that  they,  the  said  mayor,  deputy-mayor,  recorder,  and  alder- 
men of  the  said  city,  for  the  time  being,  or  any  four  or  more 
of  them,  (whereof  we  will  the  mayor  or  deputy-mayor,  or  the 
recorder  of  the  said  city,  for  the  time  being,  to  be  one,)  shall 
and  may  forever  hereafter  hold  and  keep  four  courts  of  general 
sessions  of  the  peace  in  and  for  the  said  city  and  county  cf 
New- York."  In  pursuance  of  this  authority,  and  by  virtue 
of  several  subsequent  acts  of  the  legislature,  the  aldermen  have 
exercised  the  power  conferred,  and  have  sat  as  judges  of 
the  court  of  general  sessions  of  the  peace,  until  the  passage 
of  the  act  of  the  14th  of  May,  1840.  The  first  section  of  that 
act  declares,  that  the  court  of  general  sessions  shall  hereafter 
be  held,  and  all  the  powers  thereof  exercised,  by  the  re- 
corder, and  two  judges  to  be  appointed  by  thje  governor  and 
senate.  This  infringes  upon  the  powers  of  the  aldermen 
granted  to  them  under  the  charter,  and  by  implication  repeals 
that  section  of  it  to  which  I  have  referred.  The  charter 
and  the  act  being  inconsistent  with  each  other,  they  cannot 
stand  together ;  and  a  fair  construction  of  the  language  of  the 
act  clearly  indicates  the  design  of  the  legislature  to  alter  the 
entire  organization  of  the  court,  and  to  exclude  the  aldermen 
from  acting  as  members  thereof.  For,  had  it  been  the  intention 
to  continue  the  aldermen  as  members  of  the  court,  the  above 
provision  of  the  charter  would  have  been  embraced  in  the  act ; 
but  a  failure  to  do  so,  necessarily,  and  by  all  the  rules  of  con- 
struction, excludes  them  from  acting  in  that  capacity. 

That  the  city  of  New- York  is  a  public  corporation,  and,  as 
such,  subject  to  the  control  of  the  legislature;  cannot  be  ques- 


ALBANY,  DECEMBER,  1842.  401 
Pordy  v.  The  People. 

tioned.  The  antiquity  of  its  charter,  it  having  been  granted 
by  royal  authority  prior  to  the  revolution,  confers  upon  the 
corporation  no  greater  privileges  or  rights  than  if  its  charter 
were  of  more  modern  enactment ;  and  it  must  therefore  be  gov- 
erned by  the  same  rules  of  construction,  controlled  by  the 
same  legislative  proceedings,  and  guarded  and  protected  by 
the  constitution  with  as  much  care,  as  those  which  have  been 
granted  since  the  adoption  of  that  constitution. 

The  ninth  section  of  the  seventh  article  of  the  constitution 
declares,  that  "  The  assent  of  two-thirds  of  the  members  elect- 
ed to  each  branch  of  the  legislature  shall  be  requisite  to  every 
bill,  creating,  continuing,  altering  or  renewing,  anybody  politic 
or  corporate."  But  it  is  said  that  the  act  of  May  14th,  1840, 
does  not  come  within  the  provisions  of  the  constitution  requir- 
ing a  two  third  vote,  and  that  a  majority  was  sufficient  to  pass 
the  same.  It  is  no  doubt  true,  as  was  urged  upon  the  are^i- 
ment  of  this  case,  and  as  was  observed  by  several  senators  in 
the  case  of  Warner  v.  Beers,  (23  Wend.  R.  126,)  and  by  the  chief 
justice  of  the  supreme  court  in  The  People  v.  Morris,  (13  id. 
325,)  and  The  People  ex.  rel.  Lynch  v.  The  Mayor  #c.,  (25  id. 
680,)  that  the  main  and  prominent  evil  intended  to  be  guard- 
ed against  by  the  convention  which  framed  the  constitution, 
was  the  great  accumulation  of  private  corporations,  and  parti- 
cularly of  banks  and  insurance  companies.  But  the  plain  and 
comprehensive  language  of  the  section  does  not,  in  my  judg- 
ment, justify  us  in  confining  it  to  so  narrow  a  limit ;  for  if 
there  is  any  power  in  language  to  convey  ideas,  the  section 
under  consideration  is  so  clearly  and  forcibly  expressed,  that 
lie  who  runs  may  not  only  read  but  understand.  If  it  were 
the  intention  of  the  frainers  of  the  constitution  to  exclude  pub- 
lic corporations  from  the  operation  of  this  section,  and  to  leave 
them  to  be  controlled  at  the  pleasure  of  a  bare  majority  of 
a  quorum  of  each  house,  would  they  have  declared  that  every 
bill  creating,  continuiug,  altering  or  renewing  any  body  poli- 
tic or  corporate,  should  require  the  assent  of  two-thirds 
of  the  members  elected  to  each  brr.nch  of  the  legislature  1 

VOL.  IV.  51 


402  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

The  debates  in  the  convention  which  framed  the  constitution 
show,  moreover,  that  this  subject  was  distinctly  brought  before 
that  body  in  the  course  of  the  discussion  had  upon  the  section 
in  question,  and  formally  passed  upon.  On  referring  to  Carter 
and  Stands  Debates  in  Convention,  (p.  446,)  it  will  be  seen, 
that  when  the  report  of  the  committee  containing  this  clause 
came  up  for  consideration,  not  only  was  it  suggested  that  the 
provision  would  embrace  public  as  well  as  private  corporations, 
but  a  proposition  was  actually  submitted  to  amend,  by  adding 
after  theword  "any, "the  words  "  bank  or  moneyed  institution  ;" 
thus  confining  its  operation  to  this  particular  class  of  corpora- 
tions. It  was  urged  then,  as  it  has  been  in  this  case,  that,  as 
the  section  stood,  it  would  require  two-thirds  of  the  members  of 
each  branch  of  the  legislature  to  incorporate  a  village,  bridge, 
or  turnpike.  But  it  was  answered  that  two-thirds  would  never 
be  wanting  to  incorporate  a  village  or  a  turnpike,  and  the  pro- 
posed amendment  was  thereupon  withdrawn  j  thereby  shewing 
clearly  to  my  mind  that  the  convention,  while  they  were  anxious 
to  throw  restrictions  around  the  increase,  and  at  that  time  alarm- 
ing increase,  of  moneyed  corporations,  were  at  the  same  time 
desirous  to  guard  and  protect  all  incorporated  institutions  from 
any  alteration  of  their  chartered  rights,  except  in  cases  where 
those  alterations  were  of  so  clear  and  palpable  a  character  as 
to  satisfy  the  minds  of  two-thirds  of  the  members  elected  to  the 
legislature  that  they  should  be  made. 

But  in  construing  this  clause  of  the  constitution,  we  must  be 
governed  by  those  settled  and  fixed  rules  which  have  been  es- 
tablished by  our  courts  in  reference  to  the  construction  of  stat- 
utes, &c.  What  then  are  those  rules  ?  Dwarris,  in  treating 
upon  this  subject,  says,  that  in  the  exposition  of  a  statute,  the 
leading  clue  to  the  construction  to  be  made,  is  the  intention  of 
the  legislature,  and  that  may  be  discovered  from  different 
signs.  As  a  primary  rule,  it  is  to  be  collected  from  the  words  ; 
and  when  the  words  are  not  explicit,  it  is  to  be  gathered  from  the 
occasion  and  necessity  of  the  law,  these  being  the  causes  which 


ALBANY,  DECEMBER,  1842.  4Q3 

Pordy  «.  The  People. 


moved  the  legislature  to  enact  it.  (Dwarr.  on  Stat.  693.) 
The  rule  adopted  by  Lord  Coke  -was,  first  to  consider  the 
true  import  of  the  words  themselves,  and  then  to  refer  to  the 
old  books  and  authors  that  wrote  soon  after  the  passing  of  the 
law.  "  Great  regard,"  he  says,  "  ought,  in  construing  a  stat- 
ute, to  be  paid  to  the  construction  which  the  sages  of  the  law 
who  lived  about  the  time,  or  soon  after  it  was  made,  put  upon 
it,  because  they  were  best  able  to  judge  of  the  intention  of  the 
makers  at  the  time  when  the  same  was  made."  (2  Inst.  11, 
136.  181.)  Judge  Story  says,  "  the  first  and  fundamental 
rule  in  the  interpretation  of  all  instruments  is,  to  construe  them 
according  to  the  sense  of  the  terms,  and  the  intention  of  the 
parties  ;"  (1  Story's  Com.  on  Const.  383  ;)  and  Blackstone 
says,  the  intention  of  the  law  is  to  be  gathered  from  the 
words,  the  context,  the  subject  matter,  the  consequences  and 
the  effects,  or  the  reason  and  spirit  of  the  law.  (1  El.  Com. 
59,  60.) 

Applying,  then,  these  general  principles  to  the  case  now  un- 
der review,  we  have  in  the  first  place  the  words  of  the  consti- 
tution, which  are  as  general  as  the  language  can  furnish  ; 
for  the  words  every  and  any  cannot  be  made  to  signify 
some,  to  the  exclusion  of  others,  but  must  be  taken  in  their 
common  acceptation,  and  according  to  the  meaning  which 
is  usually  attached  to  them.  Thus  interpreted,  they  admit  of 
but  one  application,  and  must  apply  and  have  reference  to 
every  species  of  corporations,  whether  public  or  private. 
Again,  if  the  words  were  of  doubtful  construction,  the  inten- 
tion of  the  convention  is  evident  from  the  debates  upon  this 
particular  clause  of  the  constitution,  to  which  I  have  referred, 
and  that  must  be  regarded  as  one  of  the  signs  by  which  we 
must  be  governed  in  its  construction.  The  sense  of  the  terms 
and  the  intention  of  the  parties  are  to  my  mind  clearly  evident 
from  the  views  which  I  have  already  taken,  and  fully  justify 
the  conclusion  that  the  act  of  1840  was  of  that  character  which 
required  the  assent  of  two-thirds  of  the  members  elected  to 


404  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

both  houses  of  the  legislature.  That  such  has  been  the  con- 
struction put  upon  it  by  the  framers  of  our  laws,  is  evident  from 
the  fact,  that  from  the  time  of  the  adoption  of  the  constitution 
ia  1822,  down  to  the  present,  most  of  the  acts  similar  in  char- 
acter to  the  one  now  under  consideration  have  been  passed  in 
accordance  with  this  view  of  the  constitution  ;  and  the  excep- 
tions only  serve  to  establish  the  generality  of  the  rule. 

One  of  the  points  submitted  by  the  plaintiff  in  error  was, 
that  the  act  of  May  14,  1840,  was  not  certified  in  the  printed 
volume  published  by  the  state  printer,  nor  in  the  original,  to 
have  been  passed  by  the  assent  of  two-thirds  of  each  house ; 
and  that,  in  point  of  fact,  as  appears  by  the  journal,  it  was  passed 
in  each  house  by  a  less  vote.  In  order  to  determine  this  fact, 
it  becomes  necessary  to  resort  to  other  evidence  than  that  which 
the  printed  volume  affords  j  for,  in  consequence  of  the  form  in 
which  the  statutes  are  printed,  it  does  not  appear  whether  it 
was  passed  as  a  two-thirds  or  majority  bill.  I  have  been 
unable  to  find  any  cases  in  our  own  courts  having  a  bearing 
upon  this  point,  or  indicating  the  manner  in  which  this  proof 
ought  to  be  made,  except  the  incidental  opinions  expressed  by 
several  senators  in  the  case  of  Warner  v.  Beers.  But  Ch.  J. 
Pratt  held,  in  Rex  v.  Jeffries,  (1  Strange,  446,)  that  it  was 
competent  to  examine  the  parliament  rolls  to  correct  an  error 
in  the  printed  copy  of  the  statutes  ;  and  Lord  Mansfield  held  a 
similar  doctrine  in  the  case  of  Rex  v.  Robotham,  (3  Burrows, 
1472.)  If,  then,  the  original  acts  of  parliament  could  be  re- 
sorted to,  and  read  at  the  bar,  for  the  purpose  of  correcting 
clerical  or  other  errors  in  the  printed  copy,  i  see  no  rea- 
son why  a  similar  practice  ought  not  to  be  sanctioned  for 
any  other  purpose.  Judges  are  bound  to  take  notice  of 
a  general  law,  and  it  is  their  province  to  determine  wheth- 
er it  be  a  statute  or  not ;  for,  as  against  a  general  stat- 
ute, nul  tiel  record  cannot  be  pleaded,  but  it  must  be  tried 
by  the  judges  who  arc  to  inform  themselves  in  the  best  way 
they  can ;  and  if  there  be  any  difficulty  or  uncertainty,  they 
are  to  make  use  of  ancient  copies,  transcripts,  books,  plead- 


ALBANY,  DECEMBER,  1842.  405 

Puidy  t>.  The  People. 

ings,  or  any  ether  memorial,  for  that  purpose.  (Dwarr.  on 
Stat.  630,  631.)  It  is  declared  by  the  revised  statutes, 
that,  "No  bill  shall  be  deemed  to  have  been  passed  by 
the  assent  of  two-thirds  of  the  members  elected  to  each 
house,  unless  so  certified  by  the  presiding  officer  of  each 
house  ;"  (1  R.  S.  156,  §  3,  of  tit.  4  ;)  and  for  the  purpose 
of  ascertaining  whether  the  act  in  question  was  so  passed,  it  be- 
comes necessary  to  resort  to  the  original  bill  on  file  in  the  office 
of  the  secretary  of  state,  upon  an  inspection  of  which  it  will 
appear  to  be  certified  in  the  usual  form  of  majority  bills.  So 
also  by  the  senate  journal  of  1840,  (pp.  123,  124,)  and  the  as- 
sembly journal  of  the  same  year,  (p.  1466,)  it  appears  that 
only  half  of  the  senators,  and  less  than  half  of  the  members 
elected  to  the  assembly,  voted  for  the  bill  upon  its  final  passage. 
This  certainly  is  as  good  evidence  as  the  nature  of  the  case  will 
admit  of.  and  in  my  judgment  is  sufficient  to  settle  the  question 
that  this  bill  was  not  passed  by  "  the  assent  of  two-thirds  of  the 
members  elected  to  each  branch  of  the  legislature." 

From  the  best  examination,  therefore,  which  I  have  been 
able  to  give  to  this  case,  I  have  arrived  at  the  conclusion,  that 
the  act  of  May  14,  1840,  on  its  true  construction,  does  by  im- 
plication abrogate  those  parts  of  the  city  charter  and  legislative 
acts  which  empower  the  aldermen  to  sit  as  judges  of  the  court 
of  general  sessions  j  that  it  comes  within  the  spirit  anil  true  in- 
tent and  meaning  of  the  ninth  section  of  the  seventh  article  of 
the  constitution,  and  consequently  required  "  the  assent  of  two- 
thirds  of  the  members  elected  to  each  branch  of  the  legisla- 
ture j"  and  that,  not  having  received  such  constitutional  vote, 
it  is  void.  1  am  cf  opinion,  therefore,  that  the  judgment  of  the 
supreme  court  should  be  reversed. 

SCOTT,  Senator.  The  principle  on  which  the  decision  of  the 
supreme  court  rests,  does  not  distinctly  appear.  Mr.  Justice 
Cowen  says  :  "  Were  I  clear  that  the  power  of  Alderman  Pur- 
dy  to  sit  as  a  judge  in  the  court  of  general  sessions,  might  be 
considered  strictly  a  corporate  right,  within  Art.  7,  §  9  of  the 


406  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

constitution,  whether  such  right  were  public  or  private,  I  might 
require  still  further  time,  or  perhaps  assent  at  once  to  the  con- 
clusion that  the  act  of  1840  did  not  affect  his  power,  for  wan't 
of  a  two-third  vote.  Such  a  Tojte  is  required  for  altering  any 
body  politic  or  corporate."  He  agrees  with  Mr.  Justice  Bron- 
son,  that  a  two-third  vote  is  required  for  altering  any  body 
politic  or  corporate  j  and  differs  from  the  opinion  of  Chief  Jus- 
tice Nelson,  as  expressed  in  the  case  of  The  People  v.  Morris , 
(13  Wend.  325,)  who  holds  that  the  concluding  clause  of  the 
ninth  section  of  the  seventh  article  of  the  constitution  applies 
to  private  corporations  only.  Mr.  Justice  Bronson  says,  the 
supreme  court  has  never  decided  that  the  constitution  did  not  ex- 
tend to  public  corporations  ;  that  this  was  merely  the  opinion 
of  the  chief  justice,  for  which  the  court  was  not  responsible. 
Mr.  Justice  Cowen  differs  entirely  from  both  the  other  judges, 
and  puts  his  opinion  on  the  ground  that  the  power  of  holding 
the  court  of  general  sessions  is  not  a  corporate  right,  and  there- 
fore not  within  that  clause  of  the  constitution  which  requires  a 
two-third  vote.  A  majority  of  the  court,  however,  agree  to 
oust  Alderman  Purdy  from  the  bench  :  one  of  the  judges,  upon 
the  interpretation  of  corporate  rights^  and  the  other,  upon  the 
interpretation  of  the  constitution — neither  having  a  majority 
of  the  court  to  sustain  him.  I  propose  to  consider  both 
grounds. 

Bodies  politic,  bodies  corporate  (corpora  corporate,)  or  cor- 
porations, are  artificial  persons,  of  which  there  is  a  great  varie- 
ty subsisting  for  the  advancement  of  religion,  of  learning  and 
of  commerce  ;  created  to  preserve  entire  and  forever  those 
rights  and  immunities,  which,  if  granted  only  to  those  individ- 
uals composing  the  body  corporate,  would,  upon  their  death, 
be  utterly  lost  and  extinct.  (1  Black.  Com.  467,  Chit,  ed.) 
Perpetual  succession  is  the  main  object  to  be  attained  by  their 
creation  ;  for,  says  Blackstone,  as  all  personal  rights  die  with 
the  person,  and  as  the  necessary  forms  of  investing  a  series  of 
individuals,  one  after  another,  with  the  same  identical  rights, 
would  be  very  inconvenient  if  not  impracticable,  it  has  been 


ALBANY,  JANUARY,  1843.  407 

Purdy  «.  The  People. 

found  necessary  to  constitute  artificial  persons.  (Id.)  Corpo*- 
rate  powers  are  corporate  rights,  depending  upon  the  grant, 
and  are  as  various  as  individual  rights.  Corporate  rights, 
whether  the  corporation  be  sole  or  aggregate,  lay  or  ecclesias- 
tical, public  or  private,  are  nothing  more  than  individual  rights 
incorporated.  Certain  lay  corporations  are  created  for  the 
good  government  of  towns  or  particular  districts  ;  (Id.  471 ;) 
and  it  has  been  usual  to  grant,  in  charters  to  these  corporations, 
divers  franchises,  as  waifs  and  estrays,  deodands,  courts  and 
cognizance  of  pleas,  markets,  &c.  (Jac.  Law  Diet.  tit.  Corpo- 
ration.) 

The  notion  of  corporate  rights  cannot  be  confined  to  the  nar- 
row ground  of  the  necessary  incidents  growing  out  of  a  general 
act  of  incorporation  ;  such  as  the  right  *e  have  perpetual  suc- 
cession, to  sue  and  be  sue*!,  to  grant  or  take  by  grant  in  the 
corporate  name,  to  have  a  common  seal,  to  make  by-laws,  &c. 
If  these  are  the  "  strict  corporate  rights"  intended  to  be  em- 
braced by  the  constitution,  then  I  cannot  see  why  every  claus,e 
of  a  charter,  not  within  this  definition,  for  whatever  purpose 
inserted,  may  not  be  altered  or  amended  by  a  majority  vote. 
Upon  this  construction  of  the  constitution,  the  capital  of  banks 
may  be  reduced  or  extended,  the  dimensions  of  rail-roads  and 
canals,  their  location,  or  the  time  fixed  for  their  completion, 
may  be  altered,  and  all  the  usual  provisions  embraced  in  char- 
ters, specifying  the  very  end  and  design  of  the  corporation, 
may  be  amended  by  a  majority  vote  ;  thus  removing  the  check 
provided  by  the  constitution  against  the  creation,  alteration  or 
continuance  of  any  corporation  except  by  a  two-third  vote. 

The  act  to  amend  the  charter  of  the  city  of  New- York,  pass- 
ed in  1830,  declares,  that  "  such  parts  of  the  charter  of  the 
city  &c.,  and  of  the  several  acts  of  the  legislature  amending  the 
same,  as  are  not  inconsistent  with  the  provisions  of  this  law, 
shall  not  be  construed  as  repealed,  modified,  or  in  any  manner 
affected  thereby ;  but  shall  continue  and  remain  in  full  force. 
(Sess.  Laws  of  '30,  p.  129,  §  26.)  The  old  charter  would  have 
remained  in  force  though  no  such  provision  had  been  made  ; 


408  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  73.  The  People. 

for  it  is  well  settled  that  a  new  charter  dees  not  merge  or  ex- 
tinguish any  of  the  ancient  privileges  of  the  old  charter.  (Hadr 
dock's  case,  T.  Raym.  Rep.  435,  439.) 

The  Montgomerie  charter  was  confirmed  by  the  colonial 
legislature  in  1732,  (Kent's  Charter,  p.  97,)  and  also  by  the 
constitution  of  1777,  (§  36,)  and  was  further  confirmed  by  the 
new  constitution  of  1821,  which  declares  that  nothing  therein 
contained  shall  annul  any  charters  to  bodies  politic  and  corpo- 
rate, made  by  the  king  of  Great  Britain  or  his  predecessors,  or 
by  persons  acting  under  their  authority,  before  the  14th  of  Oc- 
tober, 1775.  (Const,  of  JV.  F.,  Art.  7,  §  14.)  By  the  Mont- 
gomerie charter,  the  city  of  New- York  is  recognized  as  an 
ancient  city,  and  the  citizens  as  a  body  politic  and  corporate, 
by  the  name  of  the  mayor,  aldermen  and  commonalty  of  the 
city  of  New- York  ;  and,  after  confirming  the  ancient  powers, 
it  grants  to  the  corporation  itself,  by  the  name  of  the  mayor, 
aldermen  and  commonalty  of  the  city  of  New- York,  and  to 
their  successors  forever — not  to  the  aldermen  or  any  one  of 
them — that  "  the  said  mayor,  deputy-mayor,  recorder,  and 
aldermen  of  the  said  city,  for  the  time  being,  or  any  four  or 
more  of  them,  (whereof  we  will  the  mayor,  or  deputy-mayor, 
or  recorder  of  the  said  city,  for  the  time  being,  to  be  one,)  shall 
and  may  forever  hereafter  hold  and  keep  four  courts  of  gene- 
ral sessions  of  the  peace,  in  and  for  the  said  city  and  county 
of  New-York,  to  begin  at  certain  times  in  the  year,  to  wit," 
&c.  (See  Kent's  Charter,  p.  68,  69,  §  26.)  The  power  thus 
given  is  clearly  a  corporate  right ;  and  the  words  used  in 
granting  it  are  essentially  the  same  as  in  that  clause  of  the 
charter  conferring  legislative  power,  which  provides  that  the 
mayor  or  recorder,  with  four  or  more  aldermen,  and  four  or 
more  assistants  of  the  said  city,  for  the  time  being,  shall  be  for- 
ever called  the  common  council  of  the  city  of  New- York,  &c. 
and  shall  have  power  to  make  and  form  all  such  laws,  &c.  (Id.  p. 
54,  §  14.)  In  both  cases  the  grant  is  to  the  corporation  ;  some 
of  the  corporators  being  named  to  exercise  the  powers.  I  am 
at  a  loss  to  perceive  why  the  power  given  to  the  corporation 


ALBANY,  DECEMBER,  1842.  409 

Purdy  t>.  The  People. 

to  hold  a  court,  through  the  mayor,  deputy- mayor,  recorder 
and  aldermen,  should  be  construed  as  not  being  a  corporate 
right ;  while  the  power  granted  to  the  corporation  to  legislate, 
through  the  mayor,  recorder,  aldermen  and  assistants,  is  deci- 
ded to  be  a  corporate  right.  The  power  to  hold  a  court,  given 
to  a  corporation,  is  as  much  a  franchise,  as  the  right  to  hold  a 
legislative  session. 

The  act  of  May  14th,  1840,  prohibits  the  aldermen  of  the 
city  of  New- York  from  sitting  as  judges  of  the  court  of  general 
sessions  ;  and,  if  valid,  alters  the  charter.  Yet  we  are  told  by 
Mr.  Justice  Co  wen,  that  no  attempt  is  made  by  statute  to  abol- 
ish the  office  of  alderman,  or  to  diminish  his  powers  as  such. 
But,  I  ask,  are  not  his  office  and  powers  prescribed  by  the 
charter  ?  Can  he  be  deprived  of  his  seat  on  the  bench,  any 
more  than  of  his  seat  in  the  common  council,  without  diminish- 
ing his  powers  or  abolishing  his  office  ?  The  powers  conferred 
on  the  aldermen  are  grants  of  power  to  the  corporation  ;  and, 
in  this  point  of  view,  it  is  immaterial  what  belongs  to  the  office 
of  alderman  as  such.  It  is  enough  that  he  is  one  of  the  corpo- 
rate officers.  An  abridgment  of  his  power  will  abridge  that  of 
the  corporation,  because  the  latter  cannot  exercise  its  corporate 
functions  but  by  and  through  its  officers. 

The  term  alderman  does  not  import  legislative  more  than 
judicial  power.  We  learn  from  ancient  authorities  that  comes, 
ocldorman  and  carl  are  equivalent  words  in  the  Latin,  Saxon, 
and  Danish-Saxon  languages.  In  England  this  officer  sat  with 
the  bishop  at  the  trial  of  causes,  and,  while  the  latter  expound- 
ed the  ecclesiastical,  it  was  the  duty  of  the  former  to  declare 
the  common  law.  Aldermen  sat  as  justices  of  assize,  and  'ex- 
ercised such  powers  of  government  as  were  conferred  by  the 
charters  of  the  cities  or  towns  where  they  resided,  and,  in  that 
character,  took  cognizance  of  civil  as  well  as  criminal  matters ; 
at  one  time  administering  the  laws  which  emanated  from  the 
British  parliament,  and  at  another  acting  under  the  code  of 
the  corporation  Jaws.  (See  1  Hume's  Hist.  Eng.  p.  69 j 
Jacobs1  JMW  Diet.  tit.  Alderman.') 

VOL.  IV.  52 


410  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

The  general  duties,  says  Blackstone,  of  all  bodies  politic, 
considered  in  their  corporate  capacity,  may,  like  those  of  natu- 
ral persons,  be  reduced  to  this  single  one  ',  that  of  acting  up  to 
the  end  or  design  for  which  they  were  created.  (Black.  Com. 
479,  Chit,  ed,~)  In  the  present  instance,  the  "  end  or  design" 
is  specified  in  the  preamble  confirming  the  charter  of  1686, 
which  declares  the  city  of  New-York  to  be  an  ancient  city,  and 
that  the  citizens  thereof  have  anciently  been  a  body  politic  and 
corporate,  and  should  hold,  possess  and  enjoy  all  and  singular 
the  rights,  liberties,  franchises,  privileges  and  advantages,  juris- 
diction, courts,  powers,  offices  and  authorities,  in  the  before 
recited  grants,  which  they  have  held  or  claimed  by  prescription 
or  otherwise,  &c. ;  and  that  they  shall  be  and  remain  a  free 
city.  (See  Kent's  Charter ,  p.  3  et  seq.)  Thus  it  appears  that 
one  of  the  special  and  expressed  designs  of  creating  the  corpo- 
ration in  question  was,  to  confer  the  power  of  holding  a  court 
of  general  sessions  of  the  peace. 

Robertson,  in  his  view  of  the  progress  of  society  in  Eu- 
rope, says,  that  the  forming  of  cities  into  communities,  cor- 
porations or  bodies  politic,  and  granting  them  the  privi- 
lege of  municipal  jurisdiction,  contributed  more,  perhaps,  than 
any  other  cause,  to  introduce  regular  government,  police, 
and  arts,  and  to  diffuse  them  over  Europe.  The  feudal 
government  had  degenerated  into  a  system  of  oppression. 
The  usurpations  of  the  nobles  were  become  unbounded  and 
intolerable.  Louis  le  Gros,  in  order  to  create  some  power 
that  might  counterbalance  these  potent  vassals  who  control- 
led or  gave  law  to  the  crown,  first  adopted  the  plan  of  con- 
ferring new  privileges  on  the  towns  situated  within  his  own 
domain.  These  privileges  were  called  charters  of  community, 
by  which  he  enfranchised  the  inhabitants,  abolished  all  marks 
of  servitude,  and  formed  them  into  corporations  or  bodies 
politic,  to  be  governed  by  a  council  and  magistrates  of  their 
own  nomination.  These  magistrates  had  the  right  of  adminis- 
tering justice  within  their  own  precincts,  of  levying  taxes  &c. 
As  soon  as  the  towns  were  enfranchised,  and  formed  into  bodies 
corporate,  they  became  legal  and  independent  members  of  the 


ALBANY,  DECEMBER,  1842.  41  j 

Purdy  «.  The  People. 

constitution,  and  acquired  all  the  rights  essential  to  freemen. 
(See  1  Rob.  Charles  V.  p.  24,  26,  29,  JV.  Y.  cd.  of  1804.)  We 
here  find  the  reason  why  our  ancestors,  imbued  with  the  true 
spirit  of  liberty,  enumerated  the  "taking  away  [of]  our  char- 
ters" in  their  list  of  grievances  against  the  British  crown  ; 
why,  in  framing  the  old  constitution,  they  were  so  solicitous  to 
preserve  our  chartered  privileges  ;  and  why  the  framers  of  the 
new  constitution,  in  the  same  spirit,  advancing  a  step  further, 
introduced > the  clause  requiring  a  vote  of  two-thirds  of  the  le- 
gislature to  create  or  alter  any  body  politic  or  corporate. 

It  will  be  seen  that  the  constitution  makes  no  distinction,  in 
terms,  between  public  and  private  corporations.  But  it  is  said, 
the  object  of  the  clause  requiring  a  two-third  vote  was  to  pre- 
vent the  multiplicity  of  banks.  If  this  be  so,  why  were  they 
not  specially  enumerated,  or  an  exception  made  exempting 
public  corporations  from  the  general  provision  ?  The  evils  to 
be  apprehended  from  the  alteration  of  a  public  corporation  are 
far  greater  than  any  which  would  be  likely  to  flow  from  altering 
a  mere  private  corporation  ;  for  the  one  would  affect  only  a 
few  individuals,  the  other  a  whole  community.  Hence,  the 
inhabitants  of  cities  and  towns  have  been  careful  to  retain  in 
all  their  charters  the  recitals  of  their  ancient  liberties,  fran- 
chises, and  free  customs ;  because  they  know  and  understand 
the  operation  of  these  upon  their  interests  and  happiness. 
Hence,  also,  it  has  been  the  policy,  in  territorial  cessions  and 
in  conquests,  to  retain  the  ancient  usages  of  the  people. 

To  my  mind  there  is  much  more  reason  for  applying  the 
two-third  clause  of  the  constitution  to  public,  rather  than  to 
private  corporations,  in  order  to  shield  the  former  against  sudden 
and  arbitrary  encroachments  upon  their  ancient  customs.  Noth- 
ing appears  to  me  more  inconsistent  than  that  the  framers  of 
the  constitution  intended  to  allow  the  chartered  rights  of  a 
great  community,  consisting  of  more  than  three  hundred  thou- 
sand souls,  to  be  altered  by  a  bare  majority  vote  ;  while  at  the 
same  time  they  required  the  assent  of  two-thirds  of  the  mem- 
bers elected  to  each  branch  of  the  legislature  to  amend  or  alter 


412  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

the  incorporation  of  a  petty  turnpike  or  toll-bridge.  When 
we  reflect  that  the  language  of  the  constitution  is  free  from  am- 
biguity, the  construction  sought  to  be  put  upon  it  appears  to 
be  still  more  violent. 

Judge  Story  says,  in  speaking  of  the  constitution  of  the 
United  States,  (and  his  language  is  equally  applicable  to  our 
state  constitution,)  "  The  people  adopted  the  constitution  ac- 
cording to  the  words  of  the  text  in  their  reasonable  interpreta- 
tion, and  not  according  to  the  private  interpretation  .of  any  par- 
ticular men."  (1  Story's  Com.  on  Const.  392,  note.)  He  also 
remarks  :  "  Where  the  words  are  plain  and  clear,  and  the  sense 
distinct  and  perfect  arising  on  them,  there  is  generally  no  neces- 
sity to  have  recourse  to  other  means  of  interpretation.  It  is 
only  where  there  is  some  ambiguity  or  doubt  arising  from 
other  sources,  that  interpretation  has  its  proper  office."  (Id. 
p.  384.)  "  Where  the  words  of  a  man  express  his  meaning, 
plainly,  distinctly  and  perfectly,  we  have  no  occasion  to  have 
recourse  to  other  means  of  interpretation.  But  sometimes  a 
man's  words  are  obscure  ;  sometimes  they  are  ambiguous  ;  and 
sometimes  they  express  his  meaning  so  imperfectly,  as  either 
to  fall  short  of  his  intention  and  not  express  the  whole  of  it, 
or  else  to  exceed  his  intention  and  express  more  than  he  de- 
signed. In  any  of  these  cases  we  must  have  recourse  to  some 
other  means  of  interpretation  ;  that  is,  we  must  make  use  of 
some  other  signs  or  marks,  besides  the  words  of  the  speaker  or 
the  writer,  in  order  to  collect  his  meaning."  (See  2  Ruth. 
Inst.)  ch.  7,  \  2.)  "  If  the  words  and  the  construction  of  a 
writing  are  clear  and  precise,  we  scarce  call  it  interpretation 
to  collect  the  intention  of  the  writer  from  thence.  But  the 
definition  of  interpretation  will  best  inform  us  whether  it  is  to 
be  called  by  this  name,  or  not."  (Id.  §4.) 

By  adopting  these  principles,  so  clearly  expressed  by  two 
eminent  jurists,  and  applying  them  to  the  two-third  clause  of 
the  constitution,  not  a  doubt  remains  as  to  its  meaning.  The 
clause  is  as  follows  :  "  The  assent  of  two-thirds  of  the  mem- 
bers elected  to  each  branch  of  the  legislature  shall  be  requisite 


ALBANY,  DECEMBER,  1842.  413 


Purdy  v.  The  People. 


to  every  bill  appropriating  the  public  monies  or  property  for 
local  or  private  purposes,  or  creating,  continuing,  altering,  or 
renewing,  any  body  politic  or  corporate."  (Const,  of  JV*.  Y.y 
Art.  7,  §  9.)  These  words  are  so  plain,  and  their  meaning  so 
clear,  that,  had  there  been  no  attempt  to  explain  them  a\va), 
I  should  consider  it  a  work  of  supererogation  to  enlarge  on 
this  point.  If  the  words  "  altering  or  renewing  any  body  pol- 
itic or  corporate"  may  be  construed  to  mean  one  kind  of  cor- 
porations only,  viz.  private  corporations,  why  may  we  not 
make  another  distinction,  and  say  that  the  words  do  not  apply 
to  sole  corporations  1  or  another,  that  they  do  not  relate  to  lay, 
but  only  to  spiritual  corporations?  and  then,  refining  still 
more  in  our  love  of  spiritualization,  explain  "  any  body"  to 
mean  no  body  ? 

The  construction  contended  for  is  the  reverse  of  what  the 
constitution  plainly  imports. — "  Every  bill  continuing,  altering 
&c.  any  body  politic"  &c.  Johnson  says  the  word  "  every" 
means  each  one  of  all,  and  gives  this  example  :  "  All  the  con- 
gregation are  holy,  every  one  of  them.  Numbers.".  The 
same  lexicographer  defines  "  any"  to  mean  every,  and  says, 
"  it  is,  in  all  its  senses,  applied  indifferently  to  persons  or 
things."  Now,  the  construction  contended  for  by  the  defen- 
dants in  error  would  make  the  words  "  every  bill  altering  or  re- 
newing any  body  politic  or  corporate,"  mean  seme  bills  and  some 
corporations,  instead  of  all  bills  and  all  corporations.  But,  to 
my  mind,  the  words  are  so  plain  that,  in  the  language  of  Story 
and  Rutherforlh,  there  is  no  necessity  of  resorting  "  to  other 
means  of  interpretation." 

Where  the  words  of  a  law  are  dubious,  they  may  be  ex- 
plained by  resorting  to  the  context  j  (Co.  Lift.  381 ;  Stcwel  v. 
Zouch,  Plowd.  353,  3C5  ;  Crespigny  v.  Witteuccm,  4  T.  R. 
790,  793  j)  but  the  words  under  consideration  are  not  ambigu- 
ous, and  therefore,  under  no  reasonable  pretence,  can  this  rule 
be  applied  to  fritter  away  the  natural  and  obvious  sense  of  the 
constitution.  However,  if  we  apply  the  rule  to  this  case,  and 
seek  to  ascertain  the  meaning  of  the  words  by  examining  the 


414       CASES  IN  THE  COURT  OF  ERROR'S. 

Purdy  v.  The  People. 

context,  it  will  be  found  that  in  every  section  of  the  constitu- 
tion where  the  words  "  every"  and  "  any"  are  used,  it  is  in 
the  sense  defined  by  Johnson.  The  word  "  every"  occurs  fif- 
teen, and  "  any"  twenty-five  times  in  the  constitution,  and  in 
no  instance  is  either  of  them  used  in  a  limited  sense,  as  mean- 
ing some  ;  but,  on  the  contrary,  they  are  invariably  employed  in 
the  sense  of  a//,  or  each  one  of  all.  I  will  cite  only  a  few 
examples.  "  Every  bill  which  shall  have  passed  the  senate  and 
assembly,  shall,  before  it  become  a  law,  be  presented  to  the 
governor,"  &c.  "If  any  bill  shall  not  be  returned  by  the 
governor  within  ten  days  (Sundays  excepted)  after  it  shall 
have  been  presented  to  him,  the  same  shall  be  a  law,"  &c. 
(Const,  of  JV.  Y.  Art.  1,  §  12.)  "  He  [the  governor]  shall 
communicate  by  message  to  the  legislature  at  every  session," 
&c.  (Id.  Art.  3,  §  4.)  "  Where  the  duration  of  any  office  is 
not  prescribed  by  this  constitution,"  &c<  (Id.  Art.  4,  §  16.) 
"  Any  amendment,  or  amendments  to  this  constitution,  may  be 
proposed  in  the  senate  or  assembly,"  &c.  (Id.  Art.  8.)  "  Any 
bill  may  originate  in  either  house  of  the  legislature,"  &c.  (Id. 
Art.  1,  §  8.)  "So  that  every  district  shall  have  one  senator  of 
each  class."  (Id.  §  5.)  "  No  other  oath,  declaration  or  test, 
shall  be  required  as  a  qualification  for  any  office  of  public  trust." 
(Id.  Art.  6,  §  1.)  "  In  every  trial  on  impeachment  or  indict- 
ment, the  party  accused  shalh  be  allowed  counsel  as  in  civil  ac- 
tions." "  No  person  shall  be  subject,  for  the  same  offence,  to 
be  twice  put  in  jeopardy  of  life  or  limb  :  nor  shall  he  be  com- 
pelled, in  any  criminal  case,  to  be  a  witness  against  himself," 
&c.  (Id.  Art.  7,  §  7.)  "  Every  citizen  may  freely  speak, 
write,"  &c.  (Id.  §  8.)  It  will  thus  be  perceived,  if  the  con- 
struction contended  for  in  reference  to  the  clause  in  question 
be  adopted  as  a  general  rule  of  interpretation,  it  will  at  once 
abrogate  the  constitution. 

It  appears  to  me  not  within  the  power  of  man  to  select  from 
the  English  language  words  more  exactly  fitted  to  convey  the 
idea  that  all  corporations,  both  public  and  private,  were  in- 
tended to  be  embraced  by  the  constitution,  than  those  actually 


ALBANY,  DECEMBER,  1842.  415 

Purdy  ».  The  People. 

employed  j  an  intention  expressed  and  declared  in  the  conven- 
tion which  framed  the  constitution,  when  the  clause  in  question 
was  under  discussion.  (Carter  and  Stone's  Debates,  p.  446.) 
I  have  searched  the  journals  of  both  houses  since  the  adoption 
of  the  constitution,  and  have  been  unable  to  find  a  single  case, 
beside  the  present,  where  a  public  corporation  has  been  either 
created,  continued,  altered  or  renewed,  except  by  a  two-third 
vote. 

It  was  said  by  counsel,  that  the  office  of  judge  comes  from 
the  state,  that  the  people  make  the  aldermen,  and  that  it  was 
not  the  intention  of  the  constitution  to  place  judicial  officers  in 
the  city  of  New- York  upon  a  different  footing  from  those  in 
other  parts  of  the  state.  The  answer  is  :  The  constitution  in- 
tends what  it  expresses.  Mayors  and  aldermen,  elected  by  the 
people,  have  sat  and  now  sit  as  judges  in  criminal  courts  in 
most  of  the  cities  of  this  state.  The  revised  statutes  enact,  that 
the  first  judge,  mayor,  recorder  and  aldermen  of  the  city  and 
county  of  New- York,  may  hold  a  court  of  general  sessions  j 
and  the  same  provision  is  extended  to  other  cities  of  the  state. 
(2  R.  S.  216,  §  27.)  This  provision,  so  far  as  it  is  applicable 
to  the  city  of  New- York,  is  merely  declaratory  of  its  charter  ; 
and  if  the  act  of  1840  repealed  this  part  of  the  revised  statutes, 
it  did  not  repeal  the  charter.  But  it  repealed  neither,  for  it  is 
admitted  that  it  was  passed  by  a  mere  majority  vote. 

The  seventh  section  of  the  fourth  article  of  the  constitution, 
declaring  that  all  judicial  officers,  except  justices  of  the  peace, 
shall  be  appointed  by  the  governor  and  senate,  has  been  sup- 
posed to  deprive  aldermen  of  the  power  to  sit  as  judges  in  the 
court  of  general  sessions.  This  clause,  when  taken  in  connec- 
tion with  the  fifteenth  section  of  the  same  article,  declaring 
that  "  all  officers  heretofore  elected  by  the  people,  shall  continue 
to  be  elected,"  must  be  considered  as  excepting  from  the  operation 
of  the  seventh  section  all  elective  judicial  officers  ;  thus  preserv- 
ing to  the  people  of  the  city  of  New- York  the  right  heretofore 
exercised  under  the  charter  and  laws  of  electing  aldermen,  who 
have  always  exercised  judicial  powers.  By  giving  to  the  sev- 


416  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  ».  The  People. 

enth  section  the  broad  construction  contended  for,  we  should 
abrogate  the  judicial  powers  of  every  mayor  and  alderman  in  the 
state.  Nay  more,  we  should  in  effect  declare,  that  for  twenty 
years  past  they  have  usurped  the  power  of  judges,  and  that  a 
majority  perhaps  of  the  tenants  of  our  state  prisons  ought  to  be 
discharged  because  committed  by  courts  having  no  constitu- 
tional power  to  try  them.  The  revised  statutes,  which  were 
enacted  soon  after  the  adoption  of  the  constitution,  and  a  con- 
stant series  of  legislative  acts  ever  since,  conclusively  show  the 
exposition  which  has  uniformly  been  given  to  the  sections  un- 
der consideration. 

When  the  people  gave  us  a  written  constitution,  they  did 
not  intend  we  should  look  out  of  the  instrument  for  a  construc- 
tion of  their  will.  One  of  the  very  objects  they  had  in  view 
was  to  avoid  obscurity  and  ambiguity.  I  concur  entirely  in 
opinion  with  Mr.  Justice  Bronson.  He  has  discussed  this  whole 
question,  involving  a  great  constitutional  principle,  with  a 
clearness  and  force  of  argument  which  will  hereafter  be  re- 
garded not  only  as  a  model  of  judicial  reasoning,  but  a  noble 
effort  in  favor  of  constitutional  liberty. 

The  judgment  of  the  court  below  ought  to  be  reversed. 

RUGER,  Senator.  This  case  comes  here  from  the  supreme 
court  on  a  writ  of  error,  upon  an  information  in  that  court,  in 
the  nature  of  a  quo  warranto,  to  enquire  by  what  authority  or 
right,  if  any,  Elijah  F.  Purdy  held  and  exercised  the  office  of 
judge  of  the  court  of  general  sessions  in  the  city  and  county 
of  New-York. 

More  than  a  hundred  years  ago,  Governor  Montgomerie 
granted  a  charter  to  the  city  of  New-York,  authorizing  the  al- 
dermen of  that  city,  together  with  certain  other  officers,  to  hold 
courts  of  general  sessions  of  the  peace  j  and  by  virtue  of  the 
charter,  and  several  subsequent  acts  passed  by  the  legislature, 
the  aldermen  have  sat  as  judges  in  said  court  ever  since.  It  is 
admitted  that  Purdy  was  an  alderman  of  the  city  at  the  time 


ALBANY,  DECEMBER,  1842.  417 

Purdy  t>.  The  People. 

this  proceeding  was  instituted  against  him  ;  but  it  is  contended 
that  his  right  to  sit  as  a  member  of  said  court  was  taken  away 
by  an  act  of  the  legislature  passed  May  14th,  1840,  entitled  an 
act  "  for  the  better  organization  of  the  criminal  courts  in  the 
city  and  county  of  New-York." 

The  first  section  of  the  act  provides  that,  "  The  court  of 
general  sessions  in  the  city  and  county  of  New-York,  shall 
hereafter  be  held,  and  all  the  powers  thereof  exercised,  by  the 
recorder  of  the  city  of  New-York  and  two  judges  to  be  ap- 
pointed by  the  governor  and  senate,  who  shall  be  called  and 
known  as  the  associate  judges  of  the  court  of  general  sessions 
of  the  city  and  county  of  New- York."  The  fourteenth  section 
repeals  some  of  the  provisions  of  the  revised  statutes,  one  sec- 
tion of  the  act  of  1833,  "  and  all  other  acts  and  parts  of  acts 
inconsistent  with  the  provisions  of  this  act" —  i.  e.  the  act  of 
1840. 

The  repealing  clause,  being  thus  limited  to  legislative  acts 
and  parts  of  actSj  does  not  restrict  the  powers  granted  by  the 
charter  of  1730.  The  first  section,  however,  declaring  that 
the  court  "  shall  thereafter  be  held  and  all  the  powers  thereof 
exercised"  by  the  recorder  and  two  judges  to  be  appointed  by 
the  governor  and  senate,  would  seein,  at  least  indirectly,  tc 
work  a  repeal  of  so  much  of  the  charter  of  1730  as  authorized 
aldermen  to  sit  in  the  court  of  general  sessions.  That  charter 
is  under  the  control  of  the  legislature,  subject  to  alteration, 
amendment  or  repeal,  the  same  as  legislative  enactments  in  re- 
lation to  chartered  rights  and  privileges,  and  by  the  same  vote. 
Hence,  if  the  act  in  question  has  the  binding  force  of  a  law,  it 
is  very  certain  that  the  aldermen  of  the  city  of  New-York  are 
deprived  of  their  right  to  sit  as  judges  in  the  court  of  general 
sessions. 

But  has  that  act  the  binding  force  of  a  law  ?  It  is  conceded 
that  it  did  not  receive  "  the  assent  of  two-thirds  of  the  members 
elected  to  each  branch  of  the  legislature."  The  question  then 
is,  whether  the  act  be  such  as  required  a  two-thirds  vote,  under 
the  constitution  of  this  state.  The  ninth  section  of  the  seventh 

VOL.  IV.  53 


418  CASES  IN  THE  COURT  OF  ERRORS. 

Purdy  v.  The  People. 

article  of  the  constitution  provides,  that  "  The  assent  of  two- 
thirds  of  the  members  elected  to  each  branch  of  the  legislature 
shall  be  requisite  to  every  bill  &c.,  creating,  continuing,  altering 
or  renewing  any  body  politic  or  corporate."  It  is  contended  that 
this  provision  does  not  extend  to  public  corporations  ;  and  that 
therefore  the  act  of  1840  required  only  a  majority  vote.  This 
seems  to  be  a  new  construction  j  for  the  opinion  has  been,  I  may 
say,  almost  universal  for  the  last  twenty  years,  that  the  section 
extended  as  well  to  public  as  to  private  corporations.  At  the 
time  the  constitution  was  adopted,  we  had  then,  as  we  have 
now,  both  public  and  private  corporations ;  and  the  language  of 
the  clause  in  question  would  seem  to  extend  as  distinctly  to  the 
one  as  to  the  other.  The  course  of  legislation,  moreover,  for 
about  twenty  years  previous  to  1840,  has  given  a  construction  to 
this  section  of  the  constitution  in  strict  conformity  to  its  plain 
meaning  ;  recognizing  its  applicability  alike  to  both  classes  of 
corporations.  Had  the  convention  which  framed  the  constitution 
intended  to  except  public  corporations,  the  exception  would 
doubtless  have  been  made  in  direct  terms.  But  instead  of  this, 
the  language  used  precludes  the  idea  that  any  such  thing  was 
intended.  There  are  no  qualifying  words,  either  in  the  section 
itself,  or  in  other  parts  of  the  instrument,  restricting  the  provis- 
ion to  private  corporations  ;  but  the  phraseology  is  comprehen- 
sive and  unambiguous,  embracing  every  bill  altering  any  body 
politic  or  corporate.  If  this  language  be  not  broad  enough  or 
strong  enough  to  restrain  the  legislature,  it  is  hardly  possible 
to  conceive  what  language  would  be  so. 

That  the  aldermen  should  be  allowed  to  sit  as  judges  in  the 
court  of  general  sessions  of  the  peace,  is  a  right  granted  to  the 
corporation^  as  well  as  to  the  aldermen  themselves ;  and  how 
that  right  can  be  taken  away  without  altering  the  body  politic 
r.nd  corporate,  within  the  plain  meaning  and  language  of  the 
constitution,  I  am  entirely  unable  to  conceive. 

To  maintain  the  constitution  is  our  first  duty  ;  and  if  the  le- 
gislature has,  for  any  cause,  encroached  upon  that  sacred  instru- 
ment, or  if  an  erroneous  construction  has  been  given  to  it,  we 


ALBANY,  DECEMBER,  1842.  4JQ 

Purdy  «.  The  People. 

are  imperatively  called  upon  to  declare  its  meaning,  and  to  as- 
sert its  supremacy.  Nothing  can  be  more  dangerous  to  our 
free  institutions,  or  to  the  rights  of  the  people,  than  to  encour- 
age doubtful  interpretations  of  the  constitution,  contrary  to  its 
more  plain  and  natural  import,  as  understood  by  the  great  body 
of  its  readers.  The  view  taken  of  this  question  by  Mr.  Jus- 
tice Bronson  is  worthy  that  able  and  enlightened  jurist ;  and  his 
opinion  should  be  attentively  read  by  every  individual  in  our 
state  who  considers  the  constitution  worth  preserving. 

When  this  case  was  before  the  supreme  court,  (2  HiWs  Rep. 
43,)  Mr.  Justice  Bronson  came  to  the  following  conclusion,  in 
which  I  entirely  agree  j  viz. :  "  If  the  act  of  1840,  does  not  ex- 
clude the  aldermen  from  the  courts  of  general  sessions,  there 
has  then  been  no  usurpation  ;"  but  "  if  the  act  of  1840  does 
exclude  the  aldermen,  it  is  because  it  alters  the  charter  of  the 
city  under  which  they  hold  their  seats  in  the  courts  of  general 
sessions,  and  then  as  the  act  did  not  receive  the  requisite  num- 
ber of  votes,  it  is  void."  In  either  view,  Purdy  is  entitled  to 
to  his  seat  as  a  judge  of  said  court ;  and  the  judgment  of  the 
supreme  court  should  therefore  be  reversed. 

ROOT,  senator,  delivered  a  written  opinion  in  favor  of  affirm- 
ing the  judgment  of  the  supreme  court. 

On  the  question  being  put,  "  Shall  this  judgment  be  revers- 
ed ?"  the  members  of  the  court  voted  as  follows  • 

For  reversal :  Senators  BARTLIT,  CLARK,  CORNING,  DENNIS- 
TON,  ELY,  FRANKLIN,  JOHNSON,  PAIGE,  RUGER,  SCOTT,  STRONG, 
VARIAN,  and  VARNEY — 13. 

For  affirmance  :  The  PRESIDENT,  the  CHANCELLOR,  and  Sena- 
tors DIXON,  HOPKINS,  HUNT,  NICHOLAS,  PECK,  PLATT,  RHOADES, 
ROOT,  and  WORKS — 11. 


420  CASES  IN  THE  COURT  OF  ERRORS. 

Prosser  v,  Luqueer. 


PROSSER,  impleacled  &c.  v.  LUQUEER  and  others. 

Where  a  note  was  drawn  by  E.  ana  A.,  payable  to  W.  or  bearer,  and,  previous  to 
its  delivery  to  the  latter,  P.  guarantied  the  payment  of  it  by  an  endorsement 
thereon,  thus — "  For  value  received  I  guaranty  the  payment  of  the  within  note, 
and  waive  notice  of  non-payment :"  Held,  in  an  action  brought  by  a  subsequent 
holder  against  P.  and  the  makers  jointly,  that  the  plaintiff  was  entitled  to  recov- 
er ;  he  having  declared  upon  the  common  money  counts  and  served  a  copy  of 
the  note  and  guaranty  with  his  declaration. . 

Such  a  guaranty  constitutes  the  person  making  it  an  endorser  within  the  statute 
(Sess.  L.  of  '32,  p.  489,)  regulating  suits  en  bills  of  exchange  and  promissory 
notes.  Per  WALWORTH,  chancellor. 

And  semble,  independently  of  the  statute,  the  guarantor  may  be  treated  as  a 
joint  and  several  maker  of  the  note. 

Parol  evidence  is  inadmissible  to  prove  that  a  party  to  a  bill  or  note — e.  g.  an  en- 
dorser or  guarantor — intended  to  contract  a  different  obligation  from  that  import- 
ed by  his  written  engagement.  Per  WALWORTH,  chancellor. 

ON  error  from  the  supreme  court,  where  Luqueer  and  others, 
now  defendants  in  error,  sued  Prosser  and  others  in  assumpsit. 
and  recovered  judgment.  The  facts  are  sufficiently  stated  in 
the  following  opinion  of  the  chancellor.  See  also  1  Hill,  256 
et  seq.,  where  the  case  is  reported  in  the  court  below. 

M.  T.  Reynolds,  for  Prosser,  the  plaintiff  in  error. 
Willis  Hall,  for  the  defendants  in  error. 

WALWORTH,  Chancellor.  Edson  &  Arnold,  who  were  co- 
partners, made  a  promissory  note  payable  to  Parsons  or  bearer. 
Before  the  delivery  of  the  note  to  Parsons,  Prosser,  the  plaintiff 
in  error,  made  an  endorsement  on  it  bearing  even  date  there- 
with ;  by  which  endorsement,  for  value  received,  he  guar- 
antied the  payment  of  the  note  generally,  and  waived  notice 
of  non-payment.  When  the  note  became  due,  payment  was 
demanded  of  the  makers,  but  they  did  not  pay  the  same. 
F.  T.  Luqueer  and  others,  as  the  bearers  and  owners  of  the  note, 


ALBANY,  DECEMBER,  1S12.  421 


Proaeer  t>.  Luqaeer. 


thereupon  brought  a  joint  action  against  Arnold  &  Eclson  and 
Prosser,  and  declared  on  the  common  money  counts,  and  serv- 
ed a  copy  of  the  note  and  endorsement  with  their  declaration  ; 
as  directed  by  the  statute  authorizing  a  joint  suit  to  be  brought 
against  the  drawers,  makers,  endorsers  and  acceptors  of  a  bill 
of  exchange  or  a  promissory  note.  (2  jR.  *S.  2d  ed.  274,  §  6, 
7.)  And  the  only  question  is  whether  they  were  entitled  to 
recover  against  Prosser,  the  plaintiff  in  error,  in  this  form  of 
action. 

If  the  undertaking  of  Prosser  cannot  be  considered  as  a 
promissory  note  in  itself,  so  as  to  render  him  liable  as  maker  j 
or  as  an  endorsement  of  the  note  with  a  waiver  of  notice,  so  as 
to  entitle  the  bearers  of  the  note  to  recover  against  him  as  an 
endorser,  this  joint  suit  upon  the  money  counts  cannot  be  sus- 
tained. But  if  he  is  liable  to  the  bearers  of  the  note  either  as 
maker  or  endorser,  and  could  have  been  declared  against  as 
such  in  a  separate  suit  against  him,  I  think  the  statute  is  broad 
enough  to  entitle  them  to  recover  in  this  form  of  action.  For 
the  legislature  unquestionably  intended  to  authorize  a  joint 
suit  to  be  brought  against  all  the  parties  who  were  liable  as 
drawers,  endorsers,  makers  and  acceptors  of  the  same  paper. 
It  is  not  necessary,  therefore,  to  enquire  whether  Arnold  & 
Eclson  and  Prosser  could,  at  the  common  law,  have  been  all 
sued,  in  one  action,  as  joint  makers  of  the  note  in  question. 

In  this  case,  if  the  legal  liability  of  Prosser  did  not  appear 
upon  the  instrument  served  with  the  declaration,  I  think  the 
parol  evidence  of  the  agreement  of  the  drawers  to  get  endorsed 
paper  for  the  horse  and  wagon  for  which  the  note  was  given, 
could  not  aid  the  plaintiffs  in  the  court  below.  For  where  the 
party  to  a  note  or  bill  fills  un  the  instrument  by  which  his  lia- 
bility is  created,  at  the  time  he  signs  it,  as  in  this  case,  it  would 
be  a  violation  of  settled  principles^?  allow  parol  evidence  to 
be  given  for  the  purpose  of  showing  that  he  intended  to  con- 
tract for  something  different.  And  even  in  the  case  of  a  blank 
endorsement  upon  negotiable  paper,  if  it  can  be  filled  up  and 


422  CASES  IN  THE  COURT  OF  ERRORS. 

i 

Prosser  v.  Luqueer. 

made  to  operate  as  a  general  endorsement,  I  agree  with  Mr. 
'Justice  Bronson,  in  the  case  of  Seabury  v.  Hungerford,  (2 
Hill's  Rep.  80,)  that  parol  evidence  ought  not  to  be  received 
to  show  that  a  different  liability  was  intended  to  be  created  ; 
and  thus  deprive  the  endorser  of  his  right  to  notice  of  non- 
payment. 

Where  a  note  is  payable  to  bearer,  so  that  no  words  of  trans- 
fer are  necessary  to  entitle  a  subsequent  holder  to  recover 
thereon  in  his  own  name,  a  blank  endorsement  is  in  fact  and  in 
law  neither  more  nor  less  than  a  conditional  guaranty  of  pay- 
ment by  the  drawer,  provided  due  notice  of  demand  and  non- 
payment is  given  to  the  endorser.  And  parol  evidence  ought 
not  to  be  received,  in  such  a  case,  to  show  that  the  parties  in- 
tended that  the  endorser  should  be  made  liable  absolutely,  with- 
out the  performance  of  this  condition  precedent.  But  in  this 
case,  the  notice  was  expressly  waived  by  the  written  guaranty 
endorsed  on  the  note  ;  and,  in  addition  to  that,  the  plaintiffs 
proved  a  demand  of  the  makers  when  the  note  became  due, 
and  that  notice  of  non-payment  to  the  endorser  or  guarantor 
was  actually  given.  No  parol  proof  of  the  circumstances  un- 
der which  the  note  was  given  was  therefore  necessary  to  enti- 
tle the  holders  to  recover  against  him  as  such  endorser  or  guar- 
antor. 

Had  the  endorsement  guarantied  the  payment  of  the  note  to 
Parsons,  by  name,  without  any  words  of  negotiability,  it  would 
probably  have  only  operated  as  a  special  endorsement,  so  as  to 
make  it  necessary  for  the  holder  of  the  note  to  sue  the  same  in 
the  name  of  Parsons  only ;  and  that  would  have  enabled  the 
guarantor  to  set  up  any  legal  defence  which  he  had  to  the 
note  in  the  hands  of  the  person  to  whom  such  special  guaranty 
was  made.  But  a  general  guaranty,  like  this,  upon  a  note 
payable  to  bearer,  is  in  law  a  general  endorsement  of  the  note, 
with  a  waiver  of  the  condition  precedent  of  a  notice  of  non- 
payment by  the  drawers.  The  plaintiff  in  error,  therefore,  was 
liable  to  the  defendants  in  error  as  such  endorser,  and  was 


ALBANY,  DECEMBER,  1842.  423 


Prooaer  «.  Luqueer. 


properly  sued  as  such  in  a  joint  suit  with  the  makers,  under 
the  provisions  of  the  statute  on  the  subject  of  joint  suits. 

I  also  think  that  Prosser,  the  guarantor,  could  have  been 
sued  upon  this  guaranty,  by  the  bearer  of  the  note,  as  upon  an 
absolute  promise  to  pay  the  amount  to  the  bearer  when  it  be- 
came due  j  constituting  the  guarantor,  in  effect,  the  maker  of 
a  promissory  note,  payable  to  bearer,  for  the  sum  and  at  the 
time  specified  in  the  note  upon  which  this  guaranty  was  writ- 
ten. (Mien  v.  Rightmere,  20  John.  365  ;  Hough  v.  Gray,  19 
Wend.  202;  Ketchell  v.  Burns,  24  Id.  456.)  Although 
this  guaranty  does  not,  in  words,  guaranty  the  payment  to 
Parsons  or  bearer,  as  the  endorsement  did  in  the  case  of  Ketch- 
ell  v.  BurnSj  it  does  so  in  effect.  For  no  person  being  named 
in  the  guaranty,  it  is  an  absolute  promise  that  the  amount  of 
the  note  upon  which  it  is  endorsed  shall  be  paid  to  the  payee 
therein  named,  or  to  the  bearer,  at  the  time  in  such  note  speci- 
fied. And  the  words  for  value  received,  which  are  in  this  guaran- 
ty, remove  all  possible  objection  that  it  is  a  promise  to  pay  the 
debt  of  Edson  &  Arnold,  and  that  the  consideration  as  well  as 
the  promise  must  be  in  writing ;  if  such  an  objection  could 
have  been  sustained  where  a  guaranty  endorsed  upon  a  note 
stated  no  consideration  for  the  promise,  and  the  form  of  the 
security  was  such  that  the  guarantor  could  not  be  made  liable 
as  a  mere  endorser. 

I  think  there  was  no  error  in  the  judgment  of  the  court  be- 
low, and  that  it  should,  therefore,  be  affirmed. 

Ail  the  members  of  the  court,  seventeen  being  present,  con- 
curring in  this  result,  the  judgment  of  the  supreme  court  was 
unanimously  AFFIRMED. 


424  CASES  IN  THE  COURT  OF  ERRORS. 

Nellis  v.  Clark. 


NELLIS  vs.  CLARK. 

In  an  action  on  a  promisory  note  brought  by  one  not  entitled  to  be  treated  as  a  60- 
nafide  holder,  the  maker  may  defend  on  the  ground  that  the  note  was  given  in 
consideration  of  land  sold  for  the  purpose  of  defrauding  creditors ;  and  this, 
though  he  was  himself  a  party  to  the  fraud. 

B.  conveyed  certain  lands  to  C.  for  the  purpose  of  defrauding  creditors,  and  took 
back  a  bond  and  mortgage  for  a  part  of  the  purchase  money.    The  bond  and 
mortgage  were  afterwards  cancelled  in  consideration  of  C.'s  giving  his  note  to  one 
W.  for  a  house  and  lot  which  the  latter  had  contracted  to  sell  to  B.  Before  the  time 
arrived  for  executing  this  contract,  B.  obtained  a  discharge  under  the  insolvent  act, 
whereupon  his  assignee  demanded  the  note  of  W.  who  delivered  it  up  to  him  ; 
and,  by  a  subsequent  arrangement  between  B.  and  W.,  the  contract  between  them 
was  also  given  up  to  be  cancelled.    Held,  in  an  action  by  one  deriving  title  to 
the  note  under  the  assignee,  with  full  knowledge  of  the  circumstances  under 
which  it  had  been  given,  that  C.  was  not  liable. 

It  is  a  general  rule  that  courts  will  not  aid  cither  party  in  enforcing  an  illegal  exec- 
utory contract;  nor,  if  executed,  will  they  aid  either  party  in  setting  it  aside,  or 
in  recovering  back  what  has  passed  under  it. 

Various  cases  relating  to  this  doctrine  commented  on  and  explained.  Per  WAI<. 
WORTH,  chancellor. 

ON  error  from  the  supreme  court.  The  action  in  that  court 
was  assumpsit  by  Nellis  against  Clark  on  a  promissory  note  for 
$300,  dated  October  13th,  1828,  and  payable  to  William  T. 
Curtis  or  bearer,  four  years  from  date,  \vith  interest.  The  de- 
fence mainly  relied  on  was,  that  the  consideration  of  the  note 
was  illegal.  The  cause  was  first  tried  in  1836,  before  DENIO, 

C.  Judge,  and  a  verdict  rendered  for  the  plaintiff;  which  was 
afterwards  set  aside  and  a  new  trial  granted  by  the  court  be- 
low.    (See  a  report  of  the  case  in  20  Wend.  24  to  41.)     On  a 
second  trial  before  GRIDLEY,  C.  Judge,  at  the  Oneida  circuit, 
in  April,  1840,  the  following  facts  were  proved  :  In  March, 
1828,  John  Buttolph  sold  fifty-six  acres  of  land  to  the  defen- 
dant, in  consideration  of  $1200,  a  part  of  which  was  paid  in 
cash,  and  the  balance  ($700)  secured  by  bond  and  mortgage. 
The  sale  was  made  with  intent  to  defraud  the  creditors  of 
Buttolph,   and   particularly  to  prevent   the   collection   of  a 
judgment  which  he  expected  would  be  soon  rendered  against 


ALBANY,  DECEMBER,  1842.  425 

Nellis  v.  Clark. 

him  in  an  action  of  slander,  then  pending  in  favor  of  one 
Otis.  The  object  of  the  sale  was  known  to  the  defendant 
at  the  time.  In  May  following,  Otis  recovered  judgment,  and 
the  fifty-six  acres  were  levied  on  and  sold  to  one  Bruce,  by 
virtue  of  an  execution  issued  thereon.  In  October  of  the  same 
year,  Buttolph  entered  into  a  negotiation  with  Curtis  (the  payee 
of  the  note  in  question)  for  the  purchase  of  a  house  and  lot  in 
Morrisville,  proposing  to  assign  the  defendant's  bond  and 
mortgage  in  part  payment  of  the  purchase  money.  After  sev- 
eral interviews,  the  negotiation  resulted  in  a  contract  of  sale 
by  Curtis,  in  which  he  agreed  to  receive  the  defendant's  notes 
for  an  amount  equal  to  what  was  due  on  the  bond  and  mort- 
gage, and  to  execute  a  deed  to  Buttolph  on  receiving  the  bal- 
ance of  the  purchase  money  ($200)  at  a  future  day.  The  bond 
and  mortgage  were  accordingly  given  up  and  cancelled  on  the 
defendant's  giving  to  Curtis  two  notes,  one  for  $300,  (the  note 
in  question,)  and  the  other  for  $400.  Curtis  had  no  knowledge 
of  the  consideration  for  which  the  bond  and  mortgage  were 
given.  In  January,  1829,  Buttolph  was  discharged  under  the 
insolvent  act,  and  assigned  all  his  property  &c.  to  one  Beecher. 
In  November,  1830,  Bruce  recovered  possession  of  the  fifty- 
six  acres,  in  an  action  of  ejectment  against  the  defendant,  on 
the  ground  that  the  conveyance  to  him  by  Buttolph  was  fraud- 
ulent in  respect  to  creditors.  A  few  days  after  this,  by  an  ar- 
rangement between  Buttolph  and  Curtis,  the  contract  between 
them  was  cancelled  ;  Buttolph  insisting  that  the  notes  ought 
to  be  delivered  up  to  the  defendant,  as  he  had  lost  the  land  for 
which  they  were  given.  The  notes  had,  however,  been  pre- 
viously delivered  to  Beecher,  on  his  demanding  them  as  as- 
signee of  Buttolph.  In  1831,  Beecher  transferred  the  notes  to 
Bruce,  one  of  Buttolph's  creditors  ;  and  they  were  afterwards 
transferred  to  Nellis  the  plaintiff.  Th«re  was  evidence  tending 
to  shov  that  Bruce,  as  well  as  the'  plaintiff,  was  cognizant  of 
the  consideration  of  the  notes,  and  the  circumstances  under 
which  they  were  given,  at  the  time  of  the  transfers  to  them  re- 
spectively. 

VOL.  IV.  64 


426  CASES  IN  THE  COURT  OF  ERRORS 


Nellis  v.  Clark. 


The  circuit  judge  charged  the  jury  that,  in  his  opinion,  the 
defendant  was  entitled  to  a  verdict,  if  the  plaintiff  had  notice 
before  the  transfer  of  the  notes  to  him,,  of  the  consideration  for 
which  they  were  given  and  of  the  facts  and  circumstances  in 
relation  to  them  j  and  that,  whether  he  had  such  notice,  was  a 
question  of  fact  for  the  jury.  The  plaintiff's  counsel  excepted 
to  the  charge ;  and  the  jury  rendered  a  verdict  for  the  defen- 
dant. The  plaintiff  moved  for  a  new  trial,  which  was  denied 
by  the  supreme  court  at  the  January  term,  1841,  and  judgment 
rendered  for  the  defendant  j  whereupon  the  plaintiff  sued  out  a 
writ  of  error. 

H.  Denio  fy  J.  A..  Spencer,  for  the  plaintiff  in  error. 

C.  P.  Kirkland  fy  S.  Beardsley,  for  the  defendant  in  error. 

WALWOBTH,  Chancellor.  Upon  the  question  as  to  which 
the  chief  justice  differed  in  opinion  with  his  associates  in  this 
case,  I  think  they  were  in  the  right.  It  is  a  general  rule  that 
no  court  will  aid  a  party  to  an  illegal  contract  which  is  execu- 
tory only,  to  recover  thereon.  And  where  the  contract  is  exe- 
cuted, a  court  will  not  aid  a  particeps  criminis  in  setting  it 
aside.  Where  both  parties  are  equally  offenders  against  the 
positive  laws  of  the  country,  or  the  general  principles  of  public 
policy,  or  the  laws  of  decency  or  morality,  potior  est  conditio 
defendentis;  not  because  the  defendant  is  more  favored  where 
both  are  equally  criminal,  but  because  the  plaintiff  is  not  per- 
mitted to  approach  the  altar  of  justice  with  unclean  hands. 
The  exceptions  to  this  rule  are  some  few  cases  where  the  law 
which  creates  the  illegality  in  the  transaction  was  intended  to 
restrain  the  one  party  and  to  protect  the  other  ;  as  in  the  case 
of  extortion  by  public  officers  in  receiving  illegal  fees,  contracts 
by  lenders  of  money  upon  which  usurious  interest  has  been 
paid,  &c.  In  cases  of  this  kind  there  is  no  parity  of  delictum 
between  the  parties  j  the  one  only  yielding  a  constrained  ac- 
quiescence in  the  illegal  act  of  the  principal  offender.  But  in 


ALBANY,  DECEMBER,  1842.  497 


Nellis  v.  Clark. 


the  case  of  a  fraudulent  agreement,  the  object  of  which  is  to 
injure  a  third  person  or  to  deprive  him  of  his  remedy  for  the 
recovery  of  his  debt,  both  parties  to  such  agreement  are  equal- 
ly guilty  of  an  offence  against  the  laws  of  morality  and  of  so- 
cial order ;  and  there  is  no  good  reason  why  the  general  rule 
should  not  be  applied  to  them,  as  well  as  to  any  other  offenders 
against  the  laws  or  against  the  principles  of  morality  or  public 
policy. 

A  sale  or  assignment  for  the  purpose  of  delaying,  hindering, 
or  defrauding  a  creditor  in  the  collection  of  his  debt,  was  ille- 
gal at  the  common  law,  and  is  in  itself  immoral  and  against 
public  policy.  And  the  statutes  declaring  such  transactions 
void  as  against  creditors,  are  only  in  affirmance  of  the  com- 
mon law  on  that  subject.  The  word  only,  as  used  in  the  statute 
of  Elizabeth  and  in  our  revised  statute  of  1787,  on  this  subject, 
was  not  intended  to  render  executory  contractsk)f  that  character 
legal  and  valid  between  the  parties  thereto.  But  it  was  insert 
ed  to  prevent  the  general  provisions  of  the  statute  from  chang- 
ing the  common  law  rule,  as  between  the  parties  themselves, 
in  relation  to  executed  contracts.  The  decision  of  the  court  of 
king's  bench  in  Hawes  v.  Leader,  (Cro.  Jac.  271,)  which  case 
is  also  reported  by  Brownlow  and  by  Yelverton,  proceeded  upon 
the  ground  of  an  executed  contract,  in  which  the  title  of  the 
goods  had  actually  passed  to  the  grantee  by  the  deed  and  by 
a  symbolical  delivery  of  the  possession.  And  the  attention  of 
the  court  does  not  appear  to  have  been  called  to  the  fact 
that  the  action  was  founded  upon  the  covenant  in  such  executed 
contract,  and  not  upon  a  distinct  and  independent  agreement  to 
deliver  up  goods,  the  title  to  which  had  been  previously  vested 
in  the  plaintiff  by  a  valid  sale.  The  case  of  Osborne  v.  Moss, 
(7  John.  Rep.  161,)  in  the  supreme  court  of  this  state,  was  an 
action  against  the  administrator  of  theformer  owner  for  taking 
goods  out  of  the  possession  of  Osborne,  the  legal  title  to  which 
goods  was  vested  in  him  by  an  executed  contract.  It  was  there- 
fore a  case  in  which  the  same  decision  must  have  been  made 
if  the  parties  to  the  fraudulent  transfer  had  contracted  for  the 


428  CASES  IN  THE  COURT  OF  ERRORS. 


Ncllis  c.  Clark. 


sale  cf  the  goods  upon  any  other  corrupt  and  illegal  considera- 
tion. The  cases  of  Jackson  v.  Garnsey,  (16  John.  Rep.  189,) 
Drinkwater  \.-Drinkwater,  (4  Mass.  Rep.  354,)  Doe  v.  Rob- 
erts, (2  Barn.  $  Aid.  Rep.  367,)  Steel  v.  Brown  $  Parry,  (1 
Taunt.  Rep.  381,)  Reichart  \.  Castator,  (5  Binn.  Rep.  1Q9,) 
and  Stewart  v.  Kearney,  (6  Watts'  Rep.  453,)  referred  to  by 
the  counsel  for  the  plaintiff  in  error,  were  suits  for  the  proper- 
ty which  had  been  fraudulently  sold  or  assigned,  and  where 
the  legal  title  to  such  property  had  become  vested  in  the  gran- 
tees by  virtue  of  executed  contracts.  The  case  of  Montefiori 
v.  Montefiori,  (1  Win.  Black.  Rep.  363,)  was  decided  upon  a 
different  principle  ;  to  wit,  the  protection  of  the  party  intended 
to  be  defrauded  by  the  contract  upon  which  the  suit  was 
brought.  The  defendant,  for  the  purpose  of  defrauding  the 
intended  wife  of  his  brother,  by  holding  him  out  to  her  and  her 
friends  as  a  mamof  property,  gave  to  such  brother  a  note,for  a 
large  amount  as  due  to  him  upon  a  settlement  of  accounts. 
And  he  afterwards  attempted  to  set  up,  as  a  defence  to  this 
note,  that  there  was  a  secret  agreement  between  him  and  his 
brother  that  the  note  should  be  cancelled  when  the  marriage 
had  taken  place.  The  court,  therefore,  very  properly  held 
that  it  would  be  a  fraud  upon  the  wife  of  the  plaintiff  to  permit 
the  defendant  to  repudiate  the  note.  The  case  of  Findley  v. 
Cooley,  (1  Blackf.  Rep.  262,)  decided  by  Judge  Blackford  and 
his  associates,  in  our  sister  state  of  Indiana,  does,  however,  di- 
rectly decide  the  question,  that  in  the  case  of  an  executory 
contract  made  to  defraud  creditors,  the  defendant  cannot  set 
up  the  fraud  as  a  defence  to  a  suit  brought  thereon  by  a  parti 
ceps  criminis.(a)  It  is  evident,  however,  that  the  distinguish- 


(a)  Tho  case  of  Fairbanks  v.  Blackington,  (9  Pick.  93,)  in  its  dicta  at  least, 
favors  the  doctrine  of  Findley  v.  Cooley ;  while  Norris  v.  Norris\  adm'r,  (9 
Dana's  Rep.  317,)  is  directly  the  other  way.  In  the  latter,  the  learned  chief  jus- 
tico,  delivering  the  opinion  of  the  court,  observed  as  follows  :  "  When  the  parties  to 
an  illegal  or  fraudulent  contract  are  in  pari  delic.to,  neither  a  court  of  equity,  noia 
court  of  law,  will  aid  cither  of  them  in  enforcing  the  elocution  of  that  wnich  mav 
be  executory,  or  in  revoking  or  rescinding  that  which  may  bo  executed.  In 


ALBANY,  DECEMBER,  1842.  429 

NcUis  t>.  Clark. 

ed  judge  who  delivered  the  opinion  of  the  court  in  that  case 
did  not  examined  the  question  with  his  usual  care  and  dis- 
crimination. For  he  lost  sight  of  the  distinction  which  exists 
between  an  executed  and  an  executory  contract  tainted  with 
fraud  or  other  illegality.  And  he  seems  to  take  it  for  granted 
that  if  the  defendant  could  not  himself  avoid  the  fraudulent 
conveyance  which  he  had  received,  he  was  bound  to  pay  the 
consideration  of  that  conveyance  to  the  fraudulent  grantor,  or 
those  who  were  suing  for  her  benefit. 

But  the  well  reasoned  opinion  of  Chief  Justice  Mellen,  in  the 
case  of  Smith  v.  Hubbs,  (1  Fairf.  Rep.  71,)  shows  the  true 
principles  upon  which  courts  of  justice  proceed  in  suits  between 
parties  to  contracts  of  a  fraudulent  or  illegal  character ;  from 
which  opinion  it  appears  that  the  decision  of  the  court  of  In- 
diana was  a  departure  from  those  principles.  He  says  :  "  There 
is  a  marked  and  settled  distinction  between  executory  and  exe- 
cuted contracts  of  a  fraudulent  or  illegal  character.  Whatev- 
er the  parties  to  an  action  have  executed  for  fraudulent  or  ille- 
gal purposes,  the  law  refuses  to  lend  its  aid  to  enable  either 
party  to  disturb.  Whatever  the  parties  have  fraudulently  or 
illegally  contracted  to  execute,  the  law  refuses  to  compel  the 
contractor  to  execute  or  pay  damages  for  not  executing ; 
but  in  both  cases  leaves  the  parties  where  it  finds  them." 
And  the  decisions  referred  to  by  him  show  most  clearly  that 
it  makes  no  difference,  in  the  case  of  a  suit  upon  an  executory 
contract,  whether  the  proof  to  establish  the  fraudulent  or  ille- 
gal nature  of  the  transaction  comes  out  from  the  examination 


such  a  case,  the  law  will  not  be  the  instrument  of  its  own  subversion,  and 
to  every  invocation  of  its  assistance,  replies,  '  in  pari  delicto,  pntior  est  condi. 
tio  drfcndentis.'  Our  statute  against  frauds,  which  declares  that  all  conveyan- 
ces, bonds  &.c.,  made  for  the  illegal  purpose  of  defrauding  bona  fide  creditors  or  pur- 
chasers, shall  be  void  only  as  to  any  such  creditor  or  purchaser,  has  never  been  con- 
strued as  having  been  intended  to  change  the  conservative  principle  just  defined. 
It  leaves  the  parties  still,  as  between  themselves  only,  to  stand  on  the  ground  of 
the  common  law.  And  therefore,  a  party  to  an  executory  agreement  made  to  de. 
fraud  creditors  or  purchasers,  has  no  more  right  to  maintain  a  suit  for  coercing  tha 
execution  of  it,  than  a  party  to  an  executed  contract  for  the  game  illegal  end, 
•w  ould  have  to  prosecute  a  suit  for  restitution  or  rescission." 


430  CASES  IN  THE  COURT  OF  ERRORS. 


Nellis  v.  Clark. 


of  the  plaintiff's  witnesses,  or  is  introduced  by  the  defendant 
who  was  himself  a  party  to  the  fraud.  I  may  also  add,  that  in 
a  recent  case,  founded  upon  the  new  rules  of  pleading  in  Eng- 
land, which  require  the  defence  in  all  cases  to  be  stated  special- 
ly, it  has  been  held  that  the  defendant,  who  was  a  particeps 
criminis  in  an  illegal  contract,  must  himself  set  up  that  defence 
to  a  suit  upon  the  contract,  by  his  plea,  or  he  cannot  avail 
himself  of  the  illegality,  even  where  it  conies  out  upon  the  di- 
rect examination  of  the  plaintiff's  witnesses.  (Fenwick  v.  Lay- 
cock,  1  Gale  #  Dav.  Rep.  27.)  And  in  another  case,  (McKin- 
nell  v.  Robinson,  3  Mees.  fy  Wels.  Rep.  434,)  the  defendant 
who  had  borrowed  of  the  plaintiff  money  to  gamble  with,  was 
permitted,  in  an  action  brought  to  recover  the  money  lent,  to 
show  the  illegal  purpose  for  which  the  loan  was  made  to  him 
and  that  the  plaintiff  knew  the  object  for  which  it  was  borrow- 
ed, and  thereby  defeat  the  action. 

I  think,  however,  that  the  rule  that  a  party  to  an  executory 
contract  which  is  contrary  to  law  or  public  policy,  or  which 
has  been  made  for  the  purpose  of  defrauding  creditors,  cannot 
sustain  an  action  upon  such  contract,  was  improperly  applied 
to  this  case.  For,  as  I  understand  the  facts,  the  note  upon 
which  this  suit  was  brought  was  a  good  and  available  security 
in  the  hands  of  Curtis  the  original  payee,  who  was  no  party 
to  the  fraud  between  Buttolph  and  the  defendant  Clark.  It 
appears  by  the  case,  that  Buttolph  conveyed  his  land  to  Clark 
for  the  purpose  of  defrauding  Otis,  who  had  an  action  pending 
against  him  for  slander,  and  that  Clark  gave  his  bond  and  mort- 
gage upon  the  premises  for  $700.  Buttolph  then  contracted 
with  Curtis,  who  was  not  cognizant  of  the  fraud,  to  purchase 
from  him  a  house  and  lot  in  Morrisville,  and  to  assign  to  him 
the  $700  bond  and  mortgage  in  part  payment  of  the  purchase 
money.  But  it  was  finally  agreed  between  Buttolph,  Cur- 
tis and  Clark,  that  the  latter  should  give  to  Curtis  the  note  in 
question,  and  another  note  of  $400,  in  lieu  of  such  bond  and 
mortgage.  The  bond  and  mortgage  were  accordingly  can- 
celled, and  Clark  made  his  two  promissory  notes  for  the  $700, 


ALBANY,  DECEMBER,  1842. 


Nellis  o.  Clark. 


payable  to  Curtis  or  bearer,  and  delivered  them  to  Curtis  in 
part  payment  of  the  house  and  lot  in  Morrisville,  which  he 
had  by  his  written  contract  agreed  to  convey  to  Bultolph  upon 
being  paid  the  residue  of  the  purchase  money.  Upon  this  stale 
of  facts  it  is  perfectly  evident  to  me  that  the  notes  were  good 
and  available  securities  in  the  hands  of  Curtis;  and  that  Clark 
could  not  have  set  up  the  fraudulent  nature  of  the  original 
transaction  between  him  and  Buttolph  to  defeat  a  recovery  on 
these  notes.  Nor  could  Curtis  have  set  up  that  fraud  as  a  de- 
fence to  a  suit  brought  by  Buttolph  or  his  creditors  to  compel 
a  conveyance  of  the  Morrisville  house  and  lot,  upon  payment 
of  the  residue  of  the  purchase  money  in  pursuance  of  his  con- 
tract. 

Such  was  the  situation  of  the  parties  at  the  time  Butlolph. 
uas  discharged  under  the  insolvent  act,  in  January,  1829,  and 
assigned  all  his  properly  and  legal  and  equitable  rights  to 
Beecber.  Under  that  assignment  Beecher  became  entitled  to 
the  house  and  lot  in  Morrisville,  for  the  benefit  of  the  creditors 
ol  Buttolph  ;  subject  to  the  payment  of  the  $200,  which  was 
then  due  for  the  purchase  money  beyond  what  was  paid  by  the 
I  wo  notes.  It  appears,  however,  that  Beecher  supposed  he 
was  entitled  to  the  two  jiotes,  as  assignee  of  Buttolph ;  instead 
of  the  contract  for  the  house  and  lot  in  Morrisville,  in  part 
payment  of  which  contract  the  notes  had  been  given.  He  ac- 
cordingly called  upon  Curlis  for  the  notes,  and  they  were  given 
up  to  him.  The  effect  of  this  transfer  of  the  notes  was  to  sub- 
stitute such  notes  for  the  interest  which  Beecher  had  in  the 
contract.  And  as  the  notes  were  valid  in  the  hands  of  Curlis, 
they  became  good  and  available  securities-  in  the  hands  of 
Beecher,  as  the  legal  bearer  and  owner  thereof,  for  the  benefit 
of  the  creditors  of  Buttolph.  For  any  other  construction  of 
that  transaction  would  operate  as  a  fraud  upon  the  creditors  of 
Buttclph,  who  were  entitled,  under  the  assignment,  to  the  full 
value  of  his  interest  in  the  house  and  ot  according  to  the  con- 
tract, as  it  existed  at  the  time  of  his  assignment  under  the  in- 
solvent act.  After  that  assignment  hud  been  made,  Buttolpb 


432  CASES  IN  THE  COURT  OF  ERRORS. 


Nellis  v.  Clark. 


had  no  right  to  interfere  in  the  matter,  or  to  make  an  arrange- 
ment with  Curtis  to  relinquish  the  contract  of  purchase  and 
have  the  notes  given  up  and  discharged.  Indeed,  it  appears 
from  his  own  testimony  that  when  he  made  the  pretended  ar- 
rangement with  Curtis,  the  latter  had  already  delivered  the 
notes  to  Beecher  the  assignee.  And  as  Beecher  had  a  right  to 
recover  on  these  notes,  as  the  lawful  bearer  and  owner  thereof, 
for  the  benefit  of  the  creditors  of  Buttolph,  the  sale  or  delivery 
of  the  notes  to  Bruce,  one  of  the  creditors,  to  be  collected  and 
applied  to  the  payment  of  the  debts  of  Buttolph,  entitled 
Bruce  to  such  notes.  And  Nellis,  as  the  lawful  bearer  of  the 
notes,  was  entitled  to  sue  in  his  own  name,  whether  he  was  the 
actual  owner  of  the  notes,  or  the  suit  was  brought  for  the  bene- 
fit of  Bruce  and  the  other  creditors  of  Buttolph. 

It  appears  from  the  case  that  Clark  has  actually  lost  the 
land  which  he  fraudulently  purchased  from  Buttolph  to  enable 
the  latter  to  defeat  the  collection  of  the  damages  in  the  slander 
suit.  But  that  affords  no  legitimate  ground  of  defence  to  the 
suit  on  this  note  as  a  failure  of  consideration.  For  when  he 
gave  these  notes  he  assumed  the  risk  of  losing  his  land,  if  the 
fraud  was  discovered  and  the  plaintiff  in  the  slander  suit 
thought  proper  to  enforce  his  judgment  against  the  land  thus 
fraudulently  purchased. 

The  decision  of  the  judge  that  the  evidence  in  the  case  con 
stituted  a  legal  defence  to  the  suit  by  the  bearer  of  this  note, 
even  if  Nellis  was  aware  of  all  the  facts  and  circumstances  of 
the  case  at  the  time  of  the  transfer  of  the  notes  to  him,  was 
therefore  erroneous.  For  there  never  was  a  time  when  the 
notes  given  to  Curtis  were  not  legal  and  available  demands  and 
securities,  as  against  Clark  the  drawer,  in  the  hands  of  those 
who  were  the  lawful  owners  or  bearers  thereof. 

For  these  reasons  I  think  the  decision  of  Judge  Denio,  before 
whom  the  cause  was  first  tried,  was  correct,  ami  that  the  judg- 
ment of  the  supreme  court  should  be  reversed  and  a  venire  de 
novo  awarded. 


ALBANY,  DECEMBER,  1842.  433 

Neflia  v.  Clark. 

RUGER,  Senator.  I  am  of  opinion  that  the  sale  to  the  de- 
fendant was  valid  and  binding  as  between  the  parties  them- 
selves. No  doubt  it  was  void  in  respect  to  Buttolph's  credi- 
tors ;  but  that  is  not  enough  to  relieve  the  defendant  from 
liability  upon  his  contract.  The  language  of  the  statute  is 
clear  and  unequivocal,  that  sales  or  assignments  made  with  in- 
tent to  hinder,  delay  or  defraud  creditors,  are  void  only  "  as 
against  the  persons  so  hindered,  delayed  or  defrauded  j"  (2  R. 
S.  137,  §  1  ;)  and  it  has  been  held,  that  such  sales  are  to  be 
regarded  as  binding  upon  the  immediate  parties  thereto,  their 
heirs  and  personal  representatives.  (Jackson  v.  Garnsey^  16 
John.  189  j  Osborne  v.  Moss,  7  id.  161.)  If  this  be  so,  the 
distinction  taken  by  the  supreme  court  between  executory  and 
executed  contracts  can  have  no  application  to  this  case. 

Upon  what  principle  of  law,  of  justice  or  of  sound  policy,  can 
we  be  asked  to  relieve  the  defendant  from  the  payment  of  his 
note  ?  Can  he  be  relieved  on  the  mere  ground  that  he  was  a 
party  to  a  transaction  designed  to  cheat  and  defraud  innocent 
creditors  1  I  think  not.  It  is  not  pretended  that  the  defendant 
was  defrauded.  On  the  contrary,  he  was  himself  the  deceiver, 
and  attempted  to  impose  upon  creditors  the  belief  that  the  pur- 
chase from  Buttolph  was  honest  and  fair,  when,  as  to  them,  it 
was  fraudulent  and  dishonest.  By  aiding  in  the  commission  of 
a  fraud  upon  creditors,  he  hoped  to  enjoy,  at  a  cheap  price, 
what  honestly  belonged  to  them  ;  and  now,  when  the  whole 
transaction  is  exposed,  he  seeks  to  be  relieved  from  the  per- 
formance of  his  contract  by  setting  up  his  own  fraud  as  a  de- 
fence. But,  in  my  view  of  the  law,  a  party  to  a  fraud  of  this 
character  cannot  avail  himself  of  it  to  excuse  him  from  the  per- 
formance of  his  contract.  In  the  case  of  Bolt  v.  RogerSj  (3 
Paige,  157,)  the  chancellor  says  :  "  Wherever  two  or  more 
persons  are  engaged  in  a  fraudulent  transaction  to  injure  another, 
neither  law  or  equity  will  interfere  to  relieve  either  of  those 
persons,  as  against  the  ether,  from  the  consequences  of  their 
own  misconduct."  The  same  general  doctrine  will  be  found 
maintained  by  the  following  cases  :  Osborne  v.  J/ow,  (7  John. 

VOL.  IV.  55 


434  CASES  IN  THE  COURT  OF  ERRORS. 


Nellis  v.  Clark. 


161  ;)  Jackson  v.  Garnsey,  (16  id.  189  ;)  Findley  v.  Cooley, 
(1  Blackf.  R.  262 ;)  Reichart  v.  Castator,  (5  J5mn.  109  ;) 
Montefiori  v.  Montefiori,  (1  TT.  Black.  364  ;)  Babcockv.  Booth, 
(2  JEW,  181.) 

Again  :  if  my  views  of  the  case  are  correct,  the  defendant's 
liability  does  not  depend  upon  the  question  whether  the  sale  to 
him  was  fraudulent  or  honest.     The  note  was  given  some  seven 
months  after  the  sale,  and  on  a  transaction  having  no  connec- 
tion with  it.     When  the  deed  was  executed  by  Buttolph,  in 
March  1828,  he  received  from  the  defendant  five  hundred  dol- 
lars in  cash,  and  the  residue  of  the  purchase  money  was  secured 
by  bond  and  mortgage.     The  note  in  question  was  given  by 
the  defendant  to  Curtis  in  October,  1828,  on  the  sale  of  a  lot 
by  the  latter  to  Buttolph.     Curtis 'received  it  in  part  payment 
of  the  purchase  money,  and  the  bond  and  mortgage  were  can- 
ceiled.     The  note  was  therefore  given  on  the  transfer  of  prop- 
erty entirely  unconnected  with  the  alleged  fraudulent  sale,  and 
for  a  fair  and  full  consideration.     A  contract  will  be  upheld  as 
valid,  if  founded  upon  a  consideration  of  benefit  to  the  party 
promising  or  to  a  third  person  ;  and  here  the  defendant  not  on- 
ly received  back  his  own  bond  and  mortgage  to  be  cancelled, 
but  a  new  consideration  entered  into  the  transaction,  viz.  the 
sale  or  contract  of  sale  from  Curtis  to  Buttolph.     The  follow- 
ing authorities  are  sufficient  to  show  that  there  was  a  valid  con- 
sideration for  the  giving  of  the  note  :     Armstrong  v.   Toler, 
(11  Wheat.  258 ;)  Booth  v.  Hodgson,  (6  T.  R.  410  ;)  Petrie 
v.  Hannay,  (3  id.  418 ;)  Faikney  v.  Reynous,  (4  Burr.  2069  ;) 
Johnson  v.  Hudson,  (II  East,  180  ;)  Simpson  v.  Bloss,  (7  Taunt. 
246  ;)  Edwards  v.  Dick,  (4  Barn,  fy  MA.  211  j)  Chit,  on  Con. 
7,  Jim.  ed.  of  1834.     The  note  was  therefore  good  in  the  hands 
of  Curtis,  and  I  am  unable  to  perceive  how  the  transfer  of  it 
could  have  the  effect  to  render  it  invalid. 

But  it  is  said  that  the  defendant  has  lost  the  farm  conveyed 
to  him  by  Buttolph,  and  that  the  consideration  of  the  note  has 
therefore  failed.  How  has  he  been  deprived  of  the  enjoyment 
of  the  farm  ?  Not  by  reason  of  a  paramount  title  outstanding 


ALBANY,  DECEMBER,  1842.  435 


Nellifl  ».  Claik. 


in  a  third  person  ;  but  by  reason  of  his  own  fraud.     This  is  not 
enough  to  make  out  a  failure  of  consideration. 

No  person  respects  more  than  I  do  the  high  legal  attain- 
ments and  great  moral  worth  of  the  judges  who  have  passed 
upon  this  case  ;  but  from  the  vast  amount  of  business  disposed 
of  by  them  and  constantly  occupying  their  attention,  it  is  not 
surprising  that  they  should  sometimes  err,  as  I  think  a  majori- 
ty of  them  did  in  this  case.  I  am  of  opinion  that  no  principle 
of  law,  of  equity  or  of  public  policy,  requires  us  to  allow  the 
defendant  to  avail  himself  of  the  unconscientious  defence  in- 
terposed in  this  case ;  and  that  the  judgment  of  the  supreme 
court  should  therefore  be  reversed, 

BOCKEE,  Senator.  This  action  is  on  a  promissory  note  made 
by  the  defendant  on  the  13th  of  October,  1828,  for  $300,  payable 
to  William  T.  Curtis  or  bearer,  four  years  after  date,  with  in- 
terest. By  the  verdict  of  the  jury  it  is  found  that  the  plaintiff 
had  notice  of  the  consideration  of  the  note,  and  of  the  facts  and 
circumstances  connected  with  it,  before  it  was  transferred  to 
him.  The  real  consideration  of  the  note  was  the  fraudulent 
sale  of  land  by  Buttolph  to  Clark.  A  mortgage  was  first  given 
for  a  part  of  the  consideration  money,  for  which  this  note  was 
afterwards  substituted  and  passed  to  Curtis  under  circumstan- 
ces which  would  doubtless  have  rendered  it  available  to  him  as 
a  bonajide  purchaser  without  notice.  The  arrangement  with 
Curtis  being  relinguished,  and  the  note  delivered  over  to 
Beecher,  (the  assignee  of  Buttolph,)  the  original  taint  of  fraud- 
ulent consideration  adheres  to  it j  and  the  question  therefore 
arises,  whether  a  note  given  on  a  fraudulent  sale  can  be  re- 
covered by  the  payee,  or  by  any  holder  taking  it  with  knowl- 
edge of  its  fraudulent  character.  This  cause  must  be  decided 
upon  the  same  principles  as  if  Buttolph  were  the  plaintiff. 
Beecher,  the  assignee,  stands  in  the  place  of  Buttolph,  and  Nel- 
lis,  the  plaintiff,  received  the  note  with  full  knowledge  of  all 
the  circumstances  attending  it.  He  cannot,  therefore,  claim 
the  protection  due  to  a  bona  fide  holder.  The  very  elaborate 


436  CASES  IN  THE  COURT  OF  ERRORS. 


Nellis  c.  Clark. 


opinion  of  the  supreme  court  delivered  by  Justice  Co  wen,  and 
the  numerous  authorities  cited  by  him,  have  led  my  mind  to 
the  conclusion  that  a  fraudulent  executory  contract  could  not 
have  been  enforced  between  the  parties  at  common  law,  and 
that  our  statute  has  not  altered  the  rule  in  this  respect.  The 
rule  that  a  party  shall  not  be  permitted  to  allege  his  own  tur- 
pitude, does  not  apply  to  the  defendant  in  the  present  case  •  be- 
cause Buttolph  is  as  deeply  tainted  as  he.  It  would  apply  if 
Clark  were  making  this  defence  against  an  innocent  holder  of 
the  note,  or  in  case  he  was  seeking  to  recover  back^from  But- 
tolph the  consideration  money  which  he  .actually  paid  on  the 
purchase  of  the  farm.  Neither  can  the  failure  of  considera- 
tion have  any  weight  or  influence  in  the  decision  of  this  cause. 
The  law  will  not  lend  its  aid  to  adjust  equities  between  the 
parties  to  a  fraudulent  contract ;  but  leaves  them  on  the  same 
ground  upon  which  they  have  placed  themselves  by  their  acts. 
This  case  will  admit  the  joint  application  of  the  maxims  "  ex 
turpi  causa  non  oritur  actio"  and  "in  pari  deliclo  melior  est 
conditio  possidentis."  The  judgment  of  the  supreme  court 
ought  to  be  affirmed. 

On  the  question  being  put,  "  Shall  this  judgment  be  re- 
versed ?"  the  members  of  the  court  voted  as  follows  : 

For  reversal :  The  PRESIDENT,  the  CHANCELLOR  and  Sena- 
tors BARTLIT,  ELY,  FRANKLIN,  NICHOLAS,  PLATT,  RUGER  and 
VARNEY — 9. 

For  affirmance  :  Senators  BOCKEE,  DIXON,  HARD,  HUNT, 
JOHNSON,  PAIGE,  ROOT,  SCOTT,  VARIAN  and  WORKS — 10. 

Judgment  affirmed. 


ALBANY,  DECEMBER,  1842.  437 


Curtis  e.  Hubbard. 


CURTIS  vs.  HUBBARD. 

A  man's  dwelling-house  is  his  castle,  not  for  his  own  personal  protection  merely, 
but  also  for  the  protection  of  his  family  and  his  property  therein.  Per  WAL. 
WORTH,  chancellor. 

A  defendant  in  an  execution,  by  closing  the  outer  doors  of  his  dwelling-house 
against  the  sheriff,  may  prevent  the  latter  from  entering  to  make  a  levy  on  hi* 
goods.  Per  WALWORTH,  chancellor. 

As  a  general  rule,  no  one  can  acquire,  by  his  own  illegal  act,  a  right  to  the  custody 
of  another's  person  or  property.  Per  WALWORTH,  chancellor. 

The  outer  door  o.f  a  dwelling-house  being  latched  merely,  the  sheriff  entered  it, 
contrary  to  the  known  will  of  the  owner,  and  levied  upon  his  goods  therein 
by  virtue  of  a  fi.  fa. :  HELD,  illegal,  though  the  owner  was  not  in  the  house 
at  the  time ;  and  that  the  levy  gave  the  sheriff  no  right  to  remove  the 
goods. 

Held,  further,  that  even  a  guest  in  the  house  might  lawfully  resist  the  sheriff's  at- 
tempt to  remove  goods  thus  seized,  using  no  more  force  than  was  necessary. 

The  case  hi  the  Year. Book,  18  E.  4,  (fol.  4,  pi.  19,)  commented  on  and  explained. 
Per  WALWOKTH,  chancellor. 

ON  error  from  the  supreme  court,  where  Curtis  sued  Hub- 
bard  for  an  alleged  assault  and  battery.  The  court  below  ren- 
dered judgment  in  favor  of  the  defendant,  and  the  plaintiff 
brought  error.  For  a  report  of  the  case  in  that  court,  together 
with  the  opinion  there  delivered,  see  1  Hill  336  ct  seq. 

C.  P.  Kirklandj  for  the  plaintiff  in  error. 
C.  Tracy,  for  the  defendant  in  error. 

WALWORTH,  Chancellor.  This  case  presents  two  important 
questions  in  relation  to  the  rights  and  liabilities  of  sheriffs  and 
other  ministerial  officers,  in  the  execution  of  civil  process.  The 
sheriff,  after  being  forbidden  by  the  owner  of  a  house,  the 
outer  door  of  which  was  shut  and  fastened  only  by  the  ordina- 
ry latch,  entered  the  house  for  the  purpose  of  seizing  the  goods 
of  the  owner  upon  an  execution  against  him ;  the  family  of 


438  CASES  IN  THE  COURT  OF  ERRORS. 


Curtis  v.  Hubbard. 


such  owner  being  in  the  house,  although  he  was  himself  out- 
side the  door.  And  the  sheriff,  having  thus  entered  the  house, 
seized  upon  and  was  in  the  act  of  removing  a  part  of  the  goods, 
when  the  defendant  in  this  suit,  the  brother  of  the  owner,  and 
by  his  direction,  assisted  in  expelling  the  sheriff  from  the  house 
and  in  preventing  the  removal  of  the  goods  therefrom. 

The  question  whether  the  defendant  in  an  execution  had  the 
right  to  close  the  doors  of  his  house  against  the  sheriff,  to  pre- 
vent a  levy  upon  his  property,  appears  to  have  been  a  matter 
of  some  doubt  in  England  at  a  very  early  day.  And  Fitzhcrbert 
has  a  note  of  a  case  said  to  have  been  decided  as  early  as  1325, 
(Fitzkerb.Mr.tit.  Execution,  pi.  252,  H.  IS  Edw.  2,)  which 
is  in  favor  of  the  right  of  the  sheriff  to  enter  the  dwelling-house 
forcibly,  to  seize  goods  upon  execution.  No  such  case,  how- 
ever, is  to  be  found  in  the  Year-Books  of  that  term  ;  nor  is  it 
stated  by  Fitzherbert  whether  the  execution  was  in  favor  of  the 
king  or  of  a  private  person.  The  question  came  before  the 
court  of  king's  bench  about  one  hundred  and  fifty  years  after- 
wards, (Year-Books,  18  Edw.  &,fol.  4  ;)  and  the  decision  was 
against  the  right  of  the  sheriff  to  break  the  defendant's  dwel- 
ling-house with  a  view  of  levying  an  execution  upon  his  goods 
therein.  Again,  in  the  latter  part  of  the  reign  of  Queen  Eliza- 
beth, (1602,)  in  the  case  of  Semayne  v.  Gresham,  (Cro.  Eliz. 
90S,  Moor.  668,  Yelv.  29,  S.  C.)  the  question  was  presented 
to  the  queen's  bench  for  decision,  in  a  suit  brought  against  the 
owner  of  a  house  who  had  closed  his  doors  against  the  sheriff, 
so  that  he  could  not  enter  to  take  the  goods  therein  which  be- 
longed to  the  defendant  in  the  execution.  Upon  the  first  argu- 
ment, according  to  the  report  of  the  case  by  Moore,  Popham, 
C.  J.,  and  Mr.  Justice  Gawdy,  relying  upon  the  note  of  the 
case  in  Fitzherbert,  were  clearly  of  the  opinion  that  the  sheriff 
might  break  the  door  of  the  dwelling-house  to  execute  the  pro- 
cess against  the  goods.  Fenner  and  Yelverton,  the  other  two 
justices,  being  of  a  contrary  opinion,  no  judgment  was  then 
given.  But  a  fifth  judge,  Mr.  Justice  Williams,  being  appoint- 
ed in  the  king's  bench  in  the  first  year  of  James  the  first,  the 


ALBANY,  DECEMBER,  1842.  439 

Curtis  t.  Hubbard. 

case  was  again  argued  the  next  year  ;  and  Williams  concurring 
in  opinion  with  Fenner  and  Yelverton,  the  decision  was  made 
against  the  sheriff's  right,  as  reported  by  Lord  Coke.  (Se- 
tnayne-s  case,  5  CoAce,  91.)  By  this  decision,  the  right  to  close 
the  outer  door  of  the  dwelling-house  upon  the  sheriff  when  he 
came  with  an  execution,  at  the  suit  of  a  private  person,  to  levy 
upon  goods,  was  placed  upon  the  same  basis  as  the  right  to 
prevent  a  similar  entry  when  he  came  with  like  process  to  ar- 
rest the  person  of  the  defendant ;  and  that  appears  to  have 
been  considered  the  settled  law  of  England  ever  since.  It  has 
also  been  constantly  recognized  as  the  common  law  of  the  sev- 
eral states  of  the  union  where  the  English  common  law  pre- 
vails. Nor  does  the  fact  that  the  defendant  in  the  execution 
was  not  ;n  his  house  at  the  time  when  the  sheriff  opened  the 
door  and  went  in  contrary  to  his  known  will  on  the  subject, 
aiter  his  rights.  For  a  man's  house  is  his  castle,  not  for  his 
own  personal  protection  merely,  but  also  for  the  protection  of 
his  family  and  his  property  therein,  while  it  is  occupied  as  his 
residence. 

The  remaining  question  is  whether  a  sheriff,  who  has  entered 
the  house  of  another  m  direct  violation  of  the  law,  for  the  pur- 
pose of  arresting  the  owner  or  seizing  his  goods,  can  be  justified 
in  consummating  the  wrong  by  arresting  his  person  or  remov- 
ing the  goods,  where  it  is  all  one  continuous  act.  I  think, 
upon  authority  as  well  as  upon  principle,  he  cannot.  And  I 
fully  concur  in  the  opinion  of  the  learned  chief  justice  of  Mas- 
sachusetts, in  the  case  of  Jlsley  v.  Nicholsj  (12  Pick.  Rep. 
270,)  upon  this  question.  As  a  general  rule,  no  person  can  ac- 
quire a  right  to  the  custody  of  the  person  or  the  possession  of 
the  property  of  another  by  his  own  illegal  act.  And  I  think 
this  would  never  have  been  considered  an  exception  to  that 
rule,  had  not  the  language  of  the  case  cited  from  the  Year-Books 
been  misapprehended.  In  Semayne's  case,  either  the  counsel, 
or  one  of  the  judges  who  delivered  the  opinion  of  the  majority 
of  the  court)  is  represented  as  saying,  "  by  Littleton  and  all  his 
companions  it  is  resolved,  that  the  sheriff  cannot  break  the  de 


440  CASES  IN  THE  COURT  OF  ERRORS. 


Curtis  v.  Hubbard. 


fendant's  house  by  force  of  a  fieri  facias,  but  he  is  a  trespasser 
by  the  breaking,  and  yet  the  execution  which  he  then  doth 
in  the  house  is  good."  But  that  certainly  could  not  have 
been  intended  as  a  translation  of  the  language  of  the  case 
in  the  Year-Book,  (18th  Edw.  4th.)  And  Cowper  has  done 
great  injustice  to  Lord  Mansfield  by  quoting,  as  if  it  was  his 
own  language,  a  statement  of  that  case  which  bears  no  resem- 
blance to  the  note  of  the  decision  as  it  is  in  the  Year-Book.  A 
very  fair  translation  of  the  whole  case  is  given  by  Mr.  Metcalfe, 
in  his  note  to  the  case  of  Semayne  v.  Qresham  in  Yelverton; 
which  translation  does  not  vary  materially  from  that  of  Mr. 
Justice  Cowen  in  the  case  of  The  People  v.  Hubbard,  (24  Wend. 
Rep.  371.)  The  substance  of  it  is,  that  the  sheriff  had  an  exe- 
cution against  a  party  in  a  civil  suit  who  had  locked  up  his  goods 
in  a  chest  in  his  house  ;  and  the  sheriff  went  and  broke  open  the 
house  and  seized  the  goods  and  carried  them  off.  The  case  being 
stated  to  the  court  for  its  decision  whether  the  sheriff  was  guilty 
of  a  tort,  Littleton  and  his  associate  judges  held  that  the  party  in- 
jured might  have  a  writ  of  trespass  against  the  sheriff  for  break- 
ing his  house,  notwithstanding  the  execution ;  for,  as  they 
say,  "  the  fi.  fa.  will  not  excuse  him  of  the  breaking  of  the 
house,  but  of  the  taking  of  goods  only."  Not  that  it  would 
excuse  the  sheriff  for  having  taken  the  goods  in  this  particular 
case,  after  he  had  wrongfully  broken  into  the  house  where  they 
were.  But  the  words  des  biens,  which,  literally  translated,  is 
"  of  the  goods,"  seem  to  have  led  to  the  erroneous  conclusion 
that  the  court  meant  to  decide  that  the  taking  of  the  goods  in 
the  particular  case  then  stated  to  the  court,  was  a  justifiable  act, 
notwithstanding  the  breaking  of  the  house  to  get  access  to 
them.  In  the  French  and  Norman-French  languages,  the 
article  is  frequently  used  in  cases  where  we  dispense  with  it. 
And  des,  which  appears  to  be  a  contraction  of  the  preposition 
de  and  the  article  les,  is  used  where  we  make  use  of  the  corres- 
ponding preposition  only.  Thus,  the  English  expression,  "the 
laws  of  men,"  would,  in  French,  be  les  lois  des  hommes;  that 
is,  literally,  "  the  laws  of  the  men." 


ALBANY,  DECEMBER,  1842.  441 


Curtis  v.  Hubbard. 


Lord  Mansfield,  who  seems  to  have  taken  it  for  granted,  that 
in  the  case  in  the  Year-Books  the  court  had  decided  that  the 
taking  of  the  goods  was  lawful  notwithstanding  the  illegality, 
intimates  that  he  would  not  probably  have  so  decided  in  a  case 
of  the  first  impression.  (Lofft,  381;  Cowp.  G.)  And  it  is  cer- 
tain no  such  question  could  have  arisen  in  Semayne's  case,  as 
no  goods  had  been  there  taken  by  the  sheriff;  for  it  was  an  ac- 
tion against  the  owner  of  the  house  for  shutting  his  doors  and 
refusing  to  permit  the  sheriff  to  enter  and  seize  the  goods. 
The  fact  also  that  in  the  subsequent  case  of  Yates  v.  Delamayne, 
(Bac.  Abr.  tit.  Execution,  (JV.)  note,)  the  court  set  aside  the  levy 
on  an  execution,  because  the  sheriff  had  illegally  entered  the  de- 
fendant's house  to  execute  the  writ,  is  conclusive  to  show  that 
it  was  not  then  considered  as  settled  law  in  England  that  the 
sheriff  had  a  right  to  seize  the  defendant's  goods  after  having 
obtained  access  to  them  by  his  own  wrongful  act.  That  case, 
too,  appears  to  have  been  decided  in  1776,  only  two  years  after 
the  case  of  Lee  v.  Gansel,  and  while  Lord  Mansfield  continued 
to  preside  in  the  court  of  king's  bench. 

For  these  reasons,  I  think  the.  justices  of  the  supreme  court 
were  clearly  right  in  deciding  that  if  the  entry  of  the  sheriff  in 
the  present  case  was  illegal,  the  defendant,  acting  under  the 
direction  of  the  owner,  had  a  right  to  expel  him  from  the  house 
and  to  prevent  his  carrying  off  the  goods.  I  therefore  can  see 
no  error  in  the  judgment  of  the  court  below,  and  think  that 
judgment  should  be  affirmed. 

The  PRESIDENT  delivered  an  oral  opinion  in  favor  of  an 
affirmance,  and  ROOT,  sejtator,  in  favor  of  a  reversal  of  the 
judgment  of  the  supreme  court. 

On  the  question  being  put,  "  Shall  this  judgment  be  rever- 
sed ?"  the  members  of  the  court  voted  as  follows  : 

For    reversal :     Senators    FAULKNER,    NICHOLAS,    PLATT, 
RHOADES,  ROOT  and  WORKS — 6. 
VOL.  TV.  56  • 


442  CASES  IN  THE  COURT  OF  ERRORS. 


Safford  v.  Wyckoff. 


For  affirmance  :  The  PRESIDENT,  the  CHANCELLOR,  and  Sena- 
tors BARTLIT,  BOCKEE,  CLARK,  DENNISTON,  FRANKLIN,  JOHN- 
SON, PAIGE,  RUGER,  SCOTT  and  VARNEY — 12. 

Judgment  affirmed. 


SAFFORD  vs.  WYCKOFF,  President  of  the  Farmers'  Bank  of 
Seneca  county. 

A  negotiable  draft  or  bill  of  exchange  in  the  ordinary  form,  though  issued  by  an 
association  organized  under  the  general  banking  law,  without  the  sanction  of  the 
comptroller,  will  bind  the  association  as  in  favor  of  a  bona  fide  endorsee  ;  and 
this,  notwithstanding  it  be  signed  by  the  cashier  only. 

Otherwise,  however,  as  between  the  association  and  one  not  occupying  the  position 
of  a  bona  fide  holder,  if  it  appear  that  the  draft  or  bill  was  issued  by  way  of 
loan,  or  for  the  purpose  of  being  put  in  circulation  as  money.  Semble. 

How  far  these  associations  may,  as  incidental  to  the  general  powers  expressly  con 
ferrcd  on  them  by  statute,  issue  negotiable  paper,  without  the  sanction  of  the 
comptroller — e.  g.  for  the  payment  of  then1  debts,  the  transfer  of  their  funds,  &c. 
— discussed  and  considered. 

Where  there  is  enough  on  tbe  face  of  a  negotiable  note  or  bill  of  exchange  to  create 
a  suspicion  that  it  was  issued  contrary  to  law,  and  to  put  the  party  who  takes 
it  upon  enquiry,  he  is  not  entitled  to  be  considered  a  bona  fide  holder.  Semble. 

A  negotiable  note  or  bill  of  exchange,  though  given  by  a  corporation  having  only 
an  incidental  right  of  issuing  such  paper  in  certain  special  cases,  must  be  pre. 
eumcd  to  have  been  legally  issued  until  the  contrary  appear.  Semble. 

ON  error  from  the  supreme  court.  The  action  was  brought 
by  Safford,  against  Wyckoff  as  president  of  the  Farmers'  Bank 
of  Seneca  county,  and  one  Dodge,  to  recover  the  amount  of 
a  bill  of  exchange  drawn  by  the  bank  in  favor  of  Dodge,  and 
endorsed  by  him.  The  cause  was  tried  twice  j  once  in  Decem- 
ber, 1839,  and  again  in  October,  1841.  On  the  first  trial,  a 
verdict  was  rendered  in  favor  of  the  plaintiff;  but  the  supreme 
court  afterwards  set  this  aside,  and  granted  a  new  trial.  For 
the  facts  of  the  case  as  proved  upon  the  first  trial,  and  the  opin- 
ion delivered  in  the  supreme  court  on  granting  the  new  trial, 


ALBANY,  DECEMBER,  1842.  443 

Safford  r.  Wyckoff. 

see  1  Hilly  11  et  seq.  Intermediate  the  first  and  second  trial, 
the  action  was  severed  as  to  the  defendants,  and  proceeded  after- 
wards against  Wyckoff  alone.  The  facts  proved  upon  the  se- 
cond trial,  however,  so  far  as  the  material  question  in  the  case 
is  concerned,  were  not  essentially  different  from  those  which 
the  plaintiff  gave  in  evidence  at  the  first,  and  the  circuit  judge 
ordered  a  nonsuit.  At  the  May  term  of  the  supreme  court, 
1842,  the  plaintiff  moved  for  a  new  trial  upon  a  bill  of  excep- 
tions, but  the  motion  was  denied,  and  judgment  rendered  in  fa- 
vor of  the  defendant  j  whereupon  the  plaintiff  sued  oat  a  writ 
of  error. 

0.  Allen  6f  S.  StevenSj  for  the  plaintiff  in  error. 
J.  Holmes  Sf  Willis  Hall,  for  the  defendant  in  error 

WALWORTH,  Chancellor.  The  first  question  for  consideration 
in  this  case  is,  whether  an  association  formed  under  the  general 
bank  law  of  1838,  is  authorized  to  issue  negotiable  paper  for 
any  purpose,  except  such  circulating  notes  as  are  countersigned 
and  registered  in  the  office  of  the  comptroller.  I  have  considered 
these  associations,  for  all  substantial  purposes,  corporations, 
having  the  general  powers  of  corporations,  except  where  re- 
stricted by  the  act  under  which  they  are  organized.  And,  like 
other  corporations,  they  can  only  exercise  the  powers,  and  car- 
ry on  the  business,  which  the  statute  under  which  they  are  cre- 
ated has  authorized  them  to  exercise  and  carry  on,  either  in 
terms  or  by  necessary  implication.  For  I  presume  no  one  can 
suppose  that  these  associations  are  authorized  to  carry  on  every 
kind  of  business  which  an  individual  could  transact,  except 
such  as  they  are  expressly  prohibited  from  transacting  by  the 
general  bank  law.  I  shall,  therefore,  examine  their  powers 
and  their  capacities  to  contract,  upon  the  supposition  that  they 
are  in  fact  corporations,  created  for  certain  specified  objects, 
and  subject  to  the  restrictions  in  the  acts  under  which  they 
were  created  and  are  exercising  their  powers ;  and  that  they 


444  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  ».  Wyckoff. 

have  such  incidental  power  and  authority  as  they  would  have 
had  by  the  common  law  or  otherwise,  if  they  had  been  called 
corporations  in  the  act  under  which  they  are  organized. 

There  is  no  express  prohibition  in  the  act  of  1838  against 
making,  and  putting  in  circulation  as  money,  notes  and  bills 
which  are  not  countersigned  and  registered  in  the  comptroller's 
office.  But  the  general  restraining  law,  as  amended  by  the  act 
of  February,  1837,  still  declares  that  no  person,  association  of 
persons,  or  body  corporate,  except  such  bodies  corporate  as  are 
expressly  authorized  by  law,  shall  issue  any  bills  or  promissory 
notes,  or  other  evidences  of  debt,  as  private  bankers,  for  the 
purpose  of  loaning  them,  or  putting  them  in  circulation  as 
money,  unless  thereunto  specially  authorized.  (1  R.  S.  712, 
^  6  ;  Laws  of  1837,  p.  14.)  And  the  act  of  1838,  which  only 
authorizes  a  certain  kind  of  notes  to  be  put  in  circulation  as 
money,  leaves  the  restraining  law  in  full  force  as  to  every  other 
evidence  of  debt.  These  banking  associations,  therefore,  are 
prohibited  from  issuing  any  bills  or  promissory  notes,  or  other 
evidences  of  debt,  for  the  purpose  of  loaning  them,  or  having 
them  put  in  circulation  as  money ;  whatever  forms  such  evi- 
dences of  debt  may  assume.  Any  officer  or  agent  of  these 
associations,  then,  who  shall  be  guilty  of  issuing  any  such 
evidences  of  debt  with  the  intention  of  having  them  loaned  or 
put  in  circulation  as  money,  or  who  shall  directly  or  indirectly 
assent  to  the  same,  will  render  himself  liable  to  the  penalty 
of  $1000,  mentioned  in  the  restraining  law,  as  the  forfeiture  for 
a  violation  of  its  provisions.  (1  R.  S.  712,  §  7.)  And  a  nego- 
tiable bill  or  note  which  is  issued  contrary  to  law,  or  upon  an 
illegal  consideration,  is  void  in  the  hands  of  any  one  who  takes 
it  with  notice  of  the  illegality.  So  when  it  appears  upon  the 
face  of  such  negotiable  securities  that  they  were  issued  contra- 
ry to  law,  or  where 'there  is  sufficient  to  create  a  suspicion  of 
their  illegality  and  to  put  the  party  who  takes  them  upon  en- 
quiry, he  is  not  a  bonafide  holder,  and  cannot  recover  on  them 
as  such.  (Broughton  v.  The  Manchester  Waterworks  Compa- 
ny',  3  Barn.  $•  Aid.  Rep.  1  ;  Wiggin  v.  Bush,  12  John  Rep. 


ALBANY,  DECEMBER,  1842.  445 

Safford  t>.  Wyckoff. 

306.)  Thus,  in  the  case  of  The  Attorney  General  v.  The  Life 
fy  Fire  Insurance  Company,  (In  Chan.  15th  March,  1842,)  where 
an  insurance  company  had  issued  and  put  in  circulation  its  ne- 
gotiable bonds  as  money,  or  as  a  circulating  medium,  in  the 
form  of  post  notesj  in  violation  of  the  restraining  law,  and  the 
form  and  appearance  of  the  bonds  were  such  as  to  indicate  that 
they  probably  were  made  to  be  thus  circulated,  the  referees  to 
whom  the  question  of  the  liability  of  the  corporation  to  the 
bond  holders  was  referred,  decided  that  it  was  not  liable.  And 
I  sustained  the  decision  of  the  referees,  upon  the  ground  that 
the  fact  of  the  illegal  issue  of  the  bonds  was  proved,  and  that 
there  was  sufficient  upon  the  face  of  them  to  put  those  who  re- 
ceived them  upon  enquiry. 

But  a  bill,  or  any  other  negotiable  security  which  is  not  up- 
on its  face  illegal  and  unauthorized,  is  valid  in  the  hands  of  a 
bona  fide  holder  without  notice,  who  has  paid  a  valuable  con- 
sideration therefor,  except  in  those  cases  in  which  the  security 
is  made  void  by  statute.  ( Vallett  v.  Parker ',  6  Wend.  Rep. 
615.)  And  if  this  association  had  the  right  to  give  a  promis- 
sory note  or  bill  in  such  form  as  to  be  negotiable,  for  any  pur- 
pose, signed  by  the  cashier  of  the  association  only,  the  plaintiff 
was  entitled  to  recover  in  this  case.  For,  where  a  corporation 
is  authorized  to  give  a  negotiable  security  for  any  purpose, 
and  there  is  nothing  to  show  what  the  particular  security  was 
given  for,  if  there  is  nothing  upon  the  instrument  itself  to  cre- 
ate a  suspicion  that  it  was  issued  for  an  illegal  object,  the  court 
will  presume  that  it  was  given  for  a  legitimate  purpose,  rather 
than  for  a  purpose  which  was  unauthorized  and  illegal.  It  has 
frequently  been  decided  that  a  corporation  which  has  the  right 
to  contract  debts,  may  give  a  negotiable  note  or  bill,  in  pay- 
ment or  security  for  such  a  debt ;  unless  such  corporation  is 
restrained  by  its  charter  or  by  statute,  from  doing  so.  Thus, 
in  the  case  of  Mott  v.  Hicks,  (1  Cowen's  Rep.  513,)  where  a 
company  had  been  incorporated  for  the  manufacturing  of  glass, 
the  supreme  court  held  that  a  note  given  by  the  corporation, 
by  its  president,  payable  to  the  order  of  Horsfield,  was  a  valid 


446  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  v.  Wyckoff. 

note  in  the  hands  of  the  endorsee.  And  in  Barker  v.  The  Me- 
chanics' Fire  Insurance  Company,  (3  Wend.  Rep.  94,)  it  was 
held  that,  although  an  insurance  company  could  not  make  and 
issue  notes  which  were  intended  for  circulation  as  bank  paper, 
the  corporation  might  give  a  note  for  a  debt  contracted  in  the 
course  of  its  legitimate  business.  (See  also  Major  v.  Ham- 
mond, 9  Barn.  <$•  Cress.  363.)  If  these  banking  associations 
then  are  in  fact  corporations,  as  the  supreme  court  has  very 
properly  decided  that  they  are,  I  can  find  nothing  in  the  act 
under  which  they  are  organized  which  prohibits  them  from 
giving  negotiable  notes  or  drafts  in  payment  of  the  rent  of  their 
banking  houses,  the  salaries  of  their  cashiers  and  clerks,  and 
for  many  other  purposes  connected  with  the  legitimate  business 
of  banking.  And,  for  any  thing  that  appears  to  the  contrary, 
the  draft  set  out  in  this  record  was  given  in  payment  of  such  a 
debt ;  though,  out  of  the  case,  it  may  perhaps  be  shown  that  it 
was  made  to  be  put  in  circulation  as  money. 

The  objection,  however,  that  the  instrument  given  in  evi- 
dence was  not  executed  in  the  manner  required  by  the  twenty- 
first  section  of  the  general  banking  law,  so  as  to  make  it  a 
valid  and  binding  contract  which  could  be  sued  on  as  such  by 
an  endorsee,  is  one  which  I  have  in  vain  endeavored  to  over- 
come ;  for  I  have  no  doubt  the  plaintiff  took  this  draft  in 
good  faith,  believing  it  was  valid  and  binding  upon  the  asso- 
ciation. The  twenty-first  section  of  the  general  banking  law 
declares  in  express  terms,  that  contracts  made  by  any  such  as- 
sociation, and  all  notes  and  bills  by  them  issued  and  put  in  cir- 
culation as  money,  shall  be  signed  by  the  president  or  vice- 
president  and  cashier  thereof.  This  is  an  entirely  different  pro- 
vision from  that  contained  in  the  charter  of  the  Derby  Fish- 
ing Company,  upon  which  the  decision  was  founded  to  which 
we  were  referred,  from  the  state  of  Connecticut.  (2  Conn. 
Rep.  252.)  There  the  provision  was  that  all  policies  of  insur- 
ance made  by  the  company,  signed  by  the  president,  and  coun- 
tersigned by  the  secretary,  should  be  binding  on  the  company 
according  to  the  terms  and  tenor  thereof.  This  is  a  very  com- 


ALBANY,  DECEMBER,  1842.  447 

Safford  «.  Wyckoff. 

mon  provision  in  the  charters  of  insurance  companies  and  in- 
corporated banks,  and  was  originally  inserted  in  such  charters 
to  obviate  the  ancient  common  law  rule  that  a  corporation 
could  only  contract  by  deed  under  its  common  or  corporate 
seal ;  and  also  to  relieve  the  holder  of  the  policy  of  the  com- 
pany, or  the  note  of  the  bank,  from  the  burden  of  proving  that 
the  officers  who  signed  such  policy  or  note  were'  authorized  by 
the  corporation  to  make  the  contract.  In  cases  of  that  kind, 
the  statute  simply  declares  that  contracts  thus  signed  shall  be 
binding  upon  the  corporation  ;  but  not  that  all  contracts  shall 
be  executed  in  that  form,  so  as  to  deprive  the  corporation  of 
the  power  to  contract  under  its  corporate  seal,  as  it  was 'au- 
thorized to  do  by  the  common  law,  or  to  make  a  contract  in 
any  other  form  which  the  law  allows.  When  the  legislature, 
however,  declare  that  all  contracts  made  by  these  associations 
shall  be  signed  in  a  particular  way,  I  am  not  prepared  to  ad- 
mit that  the  court  is  authorized  to  say  that  a  valid  written  con- 
tract may  be  made  in  a  different  form.  This,  of  course,  does 
not  include  a  class  of  contracts  that  are  never  in  fact  made  by 
the  association,  but  which  arise  by  operation  of  law  merely  , 
as,  in  the  ordinary  case  of  an  implied  assumpsit  to  repay  moneys 
deposited  by  dealers  with  the  bank.  In  such  cases  the  certifi- 
cate of  the  cashier  or  teller,  or  the  entry  in  the  pass-book  of 
the  customer,  is  not  a  contract ;  it  is  only  evidence  of  a  fact, 
which  might  be  proved  by  parol,  to  raise  an  implied  promise 
by  operation  of  law.  But  a  negotiable  note,  draft  or  bill  of 
exchange  is  an  actual  contract ;  and  it  must  be  in  writing,  and 
properly  signed,  to  enable  a  third  person  to  recover  on  it  as 
the  endorsee  or  bearer  of  the  instrument. 

The  late  Chief  Justice  Marshall  says,  it  is  a  general  rule  that  a 
corporation  can  only  act  in  the  manner  prescribed  by  law.  Again, 
he  says  :  "  Without  ascribing  to  this  body,  which  in  its  corporate 
capacity  is  the  mere  creature  of  the  act  to  which  it  owes  its  exis- 
tence, all  the  qualities  and  disabilities  annexed  by  the  common 
law  to  ancient  institutions  of  this  sort,  it  may  correctly  be  said  to 
be  precisely  what  the  incorporating  act  has  made  it,  to  derive  all 


448  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  ».  Wyckoff. 

its  powers  from  that  act,  and  to  be  capable  of  exerting  its  fac- 
ulties only  in  the  manner  which  that  act  authorizes."  (Head 
fy  Jhnvry  v.  The,  Providence  Insurance  Company,  2  Cranch, 
167.)  I  am  not  prepared  to  say  this  language  was  properly 
applied  to  the  case  then  under  consideration  ;  in  which  the 
provision  in  the  charter  was  similar  to  that  contained  in  the  act 
incorporating  the  Derby  Fishing  Company.  But  Mr.  Justice 
Story,  in  a  subsequent  case,  (12  Wheaton^  68,)  sanctions  it  in 
its  full  extent.  And  in  the  very  recent  case  of  The  Bank  of 
Jiugusta  v.  Ea-ily,  (13  Peters,  587,)  Chief  Justice  Taney,  in 
delivering  the  opinion  of  the  supreme  court  of  the  United 
States,  says,  "it  may  be  safely  assumed  that  a  corporation  can 
make  no  contracts,  and  do  no  acts  either  within  or  without  the 
state  which  creates  it,  except  such  as  are  authorized  by  its 
charter  ;  and  those  acts  must  also  be  done  by  such  officers  or 
agents,  and  in  such  manner  as  the  charter  authorizes." 

In  the  language  of  one  of  these  distinguished  judges,  there- 
fore, I  must  say,  "  if  the  statute  imposes  the  restriction,  it  must 
be  obeyed."  And  the  statute  of  1838,  having  said,  in  so  many 
words,  that  contracts  made  by  such  associations  shall  be  signed 
by  the  president  or  vice  president  and  cashier  thereof,  a 
bill  of  exchange,  or  draft,  signed  by  the  cashier  only,  is 
not  a  valid  written  contract  and  security,  which  can  authorize 
an  endorsee  to  recover  thereon  against  the  association,  in  a  suit 
at  law  in  his  own  name,  and  without  showing  that  he  has  paid 
money  thereon  which  has  been  applied  to  the  use  of  the  asso- 
ciation so  as  to  create  a  contract  by  operation  of  law. 

I  must,  therefore,  vote  to  affirm  the  judgment  of  the  su- 
preme court. 

PAIGE,  Senator.  Parol  agreements  made  by  the  authorized 
agents  of  a  corporation,  in  relation  to  matters  within  the  scope 
of  its  legitimate  business,  are  deemed  the  express  contracts  of 
the  corporation  itself ;  and  all  duties  imposed  by  law,  and  all 
benefits  conferred  by  request  of  the  corporation,  raise  an  implied 
promise  on  which  an  action  may  be  maintained.  (Danforthv. 


ALBANY,  DECEMBER,  1842.  449 

Sufford  e.  Wyckoff. 

Scholiarie  Turnp.  Co.,  12  John.  230.)  It  is  well  settled  also, 
that  a  corporation  may  give  a  promissory  note  for  a  debt  con- 
tracted in  the  course  of  its  legitimate  business,  though  not  spe- 
cially authorized  to  do  so  by  statute.  (Barker  v.  Mechanic 
Ins.  Co.,  3  Wend.  94.)  But  where  the  mode  of  executing  written 
contracts  by  a  corporation  has  been  prescribed  by  statute,  it 
cannot  be  departed  from.  (Mechanics'  Bank  v.  Sank  of  Co- 
lumbia^ 5  Wheat.  326  j  Jlng.  fy  Ames  on  Corp.  164.)  How- 
ever, if  the  contract  be  void  because  of  a  defective  execution, 
the  consideration  received,  or  the  original  debt  for  which  the 
contract  was  given,  may  be  recovered  by  action.  These  re- 
marks apply  to  banking  associations,  whether  they  are  or  are 
not  corporations  j  for  I  have  no  doubt  that  such  institutions 
may  give  promissory  notes  or  bills  of  exchange  payable  after 
date,  without  being  countersigned  in  the  comptroller's  office, 
for  debts  legitimately  contracted.  Such  notes  or  bills  must, 
however,  be  signed  by  the  president  or  vice  president  and 
cashier,  as  required  by  the  21st  section  of  the  act  to  authorize 
the  business  of  banking.  (Sess.  L.  o/'3S,  p.  250.)  I  am  cf 
course  speaking  of  bills  and  notes  not  intented  for  circulation 
as  money  ;  for,  if  issued  for  that  purpose,  they  must  not  only 
be  signed  by  the  officers  mentioned,  but  must  also  be  counter- 
signed in  the  comptroller's  office.  I  am  of  opinion  that,  even 
before  the  act  of  1840,  (Sess.  L.  o/'40,  p.  306,  §  4,)  banking 
associations  had  no  right  to  remit  funds  in  any  other  way  than 
by  sight  drafts ;  but  however  that  may  be,  there  can  be  no 
doubt,  I  think,  that  the  bill  in  question  is  void,  because  net 
executed  in  the  manner  required  by  law. 

It  cannot  be  maintained  that  the  power  to  buy  and  sell  bills 
of  exchange,  which  is  given  by  the  18th  section  of  the  general 
banking  law,  confers  the  right  to  issue  paper  like  that  on 
which  the  plaintiff  seeks  to  recover ;  for  there  is  a  manifest 
difference  between  issuing,  and  buying  and  setting  bills  already 
issued.  It  might  be  said,  with  equal  propriety,  that,  because 
banking  associations  are  authorized  to  buy  and  sell  foreign 
coins,  they  may  manufacture  such  coins. 

VOL.  IV.  57 


450  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  ».  Wyckoff. 

Although  the  bill  in  question  is  void  by  reason  of  a  defective 
execution,  yet  it  does  not  on  its  face  appear  to  have  been 
given  for  an  illegal  consideration.  A  bonajide  endorsee  of  the 
paper  might,  therefore,  recover  the  consideration  paid  for  it  in 
an  action  against  his  immediate  endorser,  and  the  original 
creditor  could  collect  of  the  association  the  debt  or  considera- 
tion for  which  it  was  delivered  to  him,  provided  such  debt  or 
consideration  came  within  the  legitimate  purposes  of  the  asso- 
ciation. Although  the  plaintiff  cannot  maintain  this  action,  I 
have  no  doubt  he  can  recover  of  Keeler  &  Durant  the  money 
paid  to  them  on  the  transfer  of  the  bill.  The  latter  have  the 
same  remedy  against  Dodge,  their  immediate  endorser,  who 
may  in  like  manner  recover  of  the  association,  provided  the 
bill  was  founded  on  a  legal  consideration. 

For  these  reasons  I  am  in  favor  of  affirming  the  judgment 
of  the  supreme  court. 

HOPKINS,  Senator.  The  supreme  court  put  its  decision  of 
this  cause  upon  considerations  of  public  policy,  grounded 
upon  the  assumption  that  the  draft  or  bill  upon  which  the 
suit  was  brought,  was  issued  for  circulation  as  money,  or  at 
least  as  an  unlawful  circulating  medium.  Other  objections  to 
the  validity  of  the  paper  have  been  urged  by  counsel  and  will 
be  considered  ;  but  this  is  the  great  feature  of  the  case,  and  that 
with  which  the  opinion  of  the  supreme  court  is  wholly  occu- 
pied. It  becomes  important  then  to  enquire,  what  the  char- 
ter of  the  paper  is,  in  this  respect.  There  is  no  evidence  in 
the  case  in  relation  to  it,  except  what  may  be  inferred  from  the 
form  and  contents  of  the  draft  itself,  of  which  a  printed  copy 
only  is  given  ;  and  from  which  it  would  seem  not  to  differ  in 
appearance  from  ordinary  drafts  in  writing,  or,  at  most,  printed 
with  common  type  on  ordinary  paper,  as  contained  in  the  case. 
There  is  no  evidence  that  it  bore  any  resemblance  to  bank  bills 
or  circulating  notes,  nor  was  any  such  objection  raised  on  the 
trial.  If  it  bore  any  similitude  to  such  paper,  it  might  easily 
have  been  shown  j  and,  in  the  absence  of  such  testimony,  we 


ALBANY,  DECEMBER,  1842.  451 

Safford  r.  Wyckoff. 

must  presume  that  it  only  bad  the  appearance  of  an  ordinary 
draft  or  bill  of  exchange,  drawn  by  one  bank  or  commercial 
house  ou  another.  The  appearance  of  the  paper  itself,  pro- 
duced before  us  on  the  argument,  does  not  conflict  with  this 
view  of  it.  It  was  for  the  sum  of  $3000 — a  sum  not  usual  in 
bills  circulated  as  money.  It  was  drawn  payable  thirty  days 
after  date,  to  the  order  of  the  payee,  and  by  him  endorsed  to 
the  order  of  the  endorsees.  It  was  written  upon  its  face  to  be 
without  acceptance  till  due,  and  was  signed  by  only  one  officer  ; 
a  piece  of  paper,  it  would  seem,  in  no  respect  calculated  to 
circulate  as  currency,  and  evidently  not  intended  as  an  evasion 
of  the  law  in  that  respect.  Indeed,  the  supreme  court  in  a  later 
case,  (Smith,  v.  Strong,  2  Hill,  241,)  rather  abandon  the 
idea  that  tuch  paper  is  used  as  a  circulating  medium,  but  urge 
that,  by  giving  it  validity,  it  may  become  such.  I  humbly  con- 
ceive that  the  paper  described  in  this  case,  being  as  it  is  with- 
out security,  except  such  as  is  derived  from  the  endorsers, 
could  in  no  way  obtain  circulation  as  money  or  be  used  as  a 
circulating  medium,  any  more  than  like  negotiable  paper  of 
individuals  or  private  corporations.  It  is,  to  be  sure,  negotia- 
ble, but  that  was  necessary  for  the  purpose  of  convenient  and 
safe  remittance.  Beyond  this,  it  is  not  a  description  of  paper 
calculated  to  become  a  circulating  medium,  and  is  in  no  sense 
calculated  to  circulate  as  money.  The  institution  issuing  it 
held  out  no  security  for  its  payment — the  shareholders  even 
not  being  necessarily  liable,  nor  were  the  drawees  to  be  asked 
to  become  liable — and  it  could  obtain  no  confidence  in  commu- 
nity, except  so  far  as  the  names  of  the  endorsers  might  give  it 
character.  If  this  paper  is  to  be  condemned  as  forming  an  un- 
lawful currency  or  circulating  medium,  then,  by  consequence, 
all  bills  of  exchange  and  negotiable  paper  of  the  kind,  by 
whomsoever  issued,  must  be  deemed  a  nuisance,  and  public 
policy  requires  such  paper  to  be  declared  void.  And  yet,  we 
find  that  it  has  peculiar  privileges  over  other  evidences  of  debt, 
and  receives  special  favor  and  protection  by  our  laws  as  one 


452  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  v.  Wyckoff. 

of  the  greatest  conveniences  and  most  valuable  aids  to  com- 
merce and  business  generally. 

It  would  seem  that  the  paper  in  question  was  such  as  not 
to  have  excited  an  idea  on  the  trial  that  it  could  be  used  as  a 
currency  or  circulating  medium  in  any  sense.  If  it  was  of  a 
character  to  admit  even  of  a  difference  of  opinion,  the  point 
should  have  been  raised,  and  opportunity  given  to  the  plaintiff 
to  adduce  evidence  upon  the  question.  The  fact  is  no  where 
found  by  the  jury,  nor  is  it  even  presumed  by  the  judge  who 
tried  the  cause  ;  indeed,  the  parties  themselves  throughout  the 
case  designate  the  paper  simply  as  a  "  draft."  If  then  no  evidence 
is  shown  and  nothing  appears  on  the  face  of  the  paper  to  ren- 
der it  objectionable  as  being  issued  for  circulation  as  money, 
or  as  forming  a  circulating  medium  in  any  different  sfnse  than 
ordinary  negotiable  paper  of  the  kind,  certainly  we  cannot 
be  justified  in  presuming  that  there  was  an  intent  to  issue  it  for 
such  purpose,  and  especially  we  cannot  presume  that  the  plain- 
tiff had  any  knowledge  of  such  intent.  It  is  a  rule  of  law  that 
a  person  shall  be  deemed  innocent  till  proved  guilty  j  and  the 
rule  extends  to  cases  of  fraud  as  well  as  crime.  "  Honesty,  not 
fraud,  is  to  be  presumed,"  says  Justice  Cowen  in  Starr  v.  Pcc/c, 
(1  Hill,  373,)  where  the  rule  is  fully  recognized  as  applicable 
to  cases  of  fraud. 

The  supreme  court  infer  that  the  plaintiff  is  chargeable  with 
notice  that  the  bill  was  a  nullity,  because  on  the  trial  he  came 
forward  with  proof  that  the  bank  which  issued  it  was  an 
institution  under  the  general  banking  law.  They  say,  this  proof 
struck  his  claim  with  death.  Now  it  was  necessary  for  him  to 
adduce  such  proof  to  sustain  his  suit  in  form  against  the  presi- 
dent ;  but,  that  such  proof  was  adduced  on  the  trial,  is  not  evi- 
dence that,  at  the  time  he  received  the  draft,  he  knew  the  legal 
character  of  the  bank.  The  court  admit  that  he  must  be  in- 
tended to  be  an  innocent  holder,  so  far  as  regards  any  knowl- 
edge that  the  bank  on  which  the  draft  was  drawn  was  an  in- 
stitution under  the  general  banking  law,  because  no  proof  was 
offered  on  the  trial  that  it  was  such  an  institution.  It  is  diffi- 


ALBANY,  DECEMBER,  1842.  453 

Saffbrd  ».  Wjckoff. 

cult  to  conceive  why  he  should  be  deemed  any  more  acquainted, 
at  the  time  he  received  the  draft,  with  the  lecral  character  of 

i  9  *-2 

the  bank  which  drew  it,  because  afterwards,  on  the  trial,  proof 
was  adduced  to  show  that  character.  It  can  only  be  by  a  pre- 
sumption, contravening  the  rule  laid  down  by  Mr.  Justice  Cow- 
en,  just  referred  to.  It  was  conceded  that  the  court.could  not 
know  judicially  that  the  drawees  were  not  a  corporation  which 
might  issue  all  kinds  of  negotiable  paper ;  and  I  do  not  see  why 
the  plaintiff  was  any  more  bound  to  know,  when  he  received  the 
draft,  that  the  drawers  were  not  a  corporation  that  might  issue 
all  kinds  of  negotiable  paper,  even  supposing  that  they  have 
not  such  right  for  any  purpose. 

But  in  Smith  v.  Strong,  (2  Hill,  241,)  where  the  plaintiff  in 
a  suit  against  an  endorser  of  such  paper  was  not  under  the 
necessity  of  adducing  the  proof,  which  it  is  said  in  this  case 
struck  the  plaintiff's  claim  with  death,  the  court  found  it  neces- 
sary to  go  further,  and  argued  that  the  plaintiff  was  to  be  presum- 
ed to  have  had  notice,  because  the  draft  or  bill  purported  on  its 
face  to  have  been  issued  by  a  bank.  The  illegality  of  its  cir- 
culation, and  its  invalidity  in  the  hands  of  the  plaintiff,  were 
consequently  made  to  depend  upon  the  fact  that  it  purported  to 
be  issued  by  a  bank,  no  matter  what  its  appearance  might  other- 
wise have  been.  If  the  court  is  driven  to  this  criterion,  as  it 
must  be  in  suits  between  endorsers  and  endorsees,  then,  conse- 
quently, the  paper  of  an  institution  or  of  an  individual  banker, 
doing  business  under  some  other  name  than  that  of  a  bank, 
whose  paper  would  not  purport  upon  its  face  to  be  issued  by  a 
bank,  might  have  validity  to  some  extent  and  enjoy  a  privilege 
of  circulation  which  the  same  paper  could  not  enjoy  if  issued 
under  the  name  of  a  bank,  although  issued  under  the  same 
law.  An  institution  under  the  general  banking  law  might  le- 
gally, and  sometimes  perhaps  appropriately,  adopt  the  name 
of  "  Paper  Manufacturing  Company"  under  which  name  their 
drafts  might  be  received  without  enquiry  j  but  if  it  adopt  the 
name  of  a  bank,  as  it  has  an  equal  right  to  do,  then  the  same- 
drafts  would  be  deemed  to  be  a  circulating  medium  and  void 


454  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  v.  Wyckoff. 

in  the  hands  of  every  one,  for  want  of  being  countersigned  by 
the  comptroller.  If  the  word  "  bank"  on  a  draft,  is  to  alter 
its  character  and  make  it  a  circulating  bank  bill,  although 
having  no  resemblance  to  circulating  bills,  then  must  all  drafts 
and  bills  of  exchange  issued  by  safety  fund  banks,  though  to 
an  indefinite  amount,  be  within  the  security  of  the  safety  fund. 
I  do  not  think  that  so  much  effect  is  to  be  given  to  such  a  use 
of  the  word.  I  think  the  plaintiff  must  be  deemed  a  bona  fide 
holder,  so  far  at  all  events  as  regards  any  intention,  either  on 
his  own  part  or  that  of  the  drawers,  to  give  circulation  to  the 
draft  as  an  unlawful  currency  or  circulating  medium. 

But  conceding  that  the  paper  was  not  issued  for  circulation 
as  money,  and  was  not  likely  to  come  in  use  as  a  circulating 
medium,  still,  it  is  objected,  that  the  bank  had  no  authority  to 
issue  drafts  for  any  purpose  ;  and  it  is  contended  that,  although 
the  statute  does  not  expressly  prohibit  it,  nor  anywhere  declare 
such  paper  void,  yet  the  bank  may  set  up  its  own  wrongful  act 
of  issuing  it  without  authority,  to  protect  itself  from  payment. 
I  shall  examine  the  question  whether  such  a  defence  may  be 
maintained,  even  if  the  paper  was  issued  without  authority  ;  but 
will  first  enquire  whether  it  was  so  issued.  If  the  bank  had 
authority  to  draw  drafts  at  all,  there  was  no  provision,  at  tho 
time  this  was  drawn,  against  its  being  payable  at  a  future  day. 
The  act  of  1840  providing  against  it  had  not  been  passed. 

What  then  do  we  find  in  the  general  banking  law  of  1838 
upon  the  question  ?  We  find  in  several  places  a  recognized  dis- 
tinction between  bills  and  notes  to  be  issued  for  circulation  as 
money,  and  other  paper  not  intended  for  such  purpose.  In  re- 
gard to  the  former,  we  find  that  the  act  professes  to  provide 
every  possible  security  for  the  protection  of  the  public,  in  re- 
lation to  paper  to  be  issued  for  circulation  as  money  ;  while  it 
holds  out  no  security  for  the  latter,  and  does  not  profess  to 
protect  other  creditors  of  the  banks,  but  leaves  them  much  to 
their  own  watchfulness  and  vigilance.  It  even  exempts  the 
shareholders  from  liability,  unless  they  elect  to  become  liable. 
The  7th  clause  of  the  26th  section  of  the  act  contemplates  the 


ALBANY,  DECEMBER,  1842.  455 

Saflbrd  r.  Wyckoff. 

issue  of  evidences  of  debt,  other  than  bills  and  notes.  It  also 
requires  a  statement  of  bills  and  notes  generally,  or  without 
adding  "  issued  for  circulation  as  money  ;"  while  the  9th  clause 
requires  a  statement  of  bills  and  notes  issued  for  circulation  as 
money.  The  29th  section  allows  fourteen  per  cent,  interest  in 
case  of  non-payment  of  bills  or  notes  issued  for  circulation  as 
money.  The  31st  section  prohibits  paper  issued  for  circulation 
as  money  of  a  less  denomination  than  $1000  being  made  paya- 
ble at  any  other  place  than  the  office  of  the  bank  issuing  it. 
The  21st  section  requires  "  contracts  made  by  any  such  associ- 
ation, and  all  notes  and  bills  issued  and  put  in  circulation  as 
money?  to  be  signed  by  the  president,  or  vice  president  and 
cashier  j  leaving  the  inference  that  there  might  be  other  bills 
and  notes  not  issued  for  circulation  as  money  that  would  not 
be  subject  to  such  interest,  that  might  be  payable  elsewhere 
than  at  the  office  of  the  bank  issuing  them,  and  might  be  sign- 
ed otherwise  than  is  prescribed  for  paper  to  be  issued  for  such 
circulation. 

But  more  direct  authority,  I  think,  is  found  in  the  18th  sec- 
tion, which  authorizes  the  carrying  on  of  the  business  of  bank- 
ing, and  the  exercise  of  all  incidental  powers  necessary  to  carry 
on  such  business  ;  for  such  I  think  is  the  fair  construction  of  that 
section  as  regards  incidental  powers.  Among  those  powers 
must  be  implied  that  of  drawing  and  transferring  funds  by 
draft — without  which  a  bank,  at  least  in  the  country,  would  no 
doubt  find  itself  greatly  embarrassed  in  its  appropriate  business 
transactions.  It  may  be  said  that  in  this  case  there  were  no 
funds  to  transfer ;  but  if  so,  it  does  not  appear  that  the  plantiff 
knew  such  to  be  the  case  when  he  received  the  draft.  If  it  is 
said  that  the  draft  was  payable  at  a  future  day,  it  may  have 
been  drawn  against  funds  subject  to  draft  only  on  a  future  day, 
or  the  bank  may  have  just  purchased,  as  it  had  a  right  to  do,  a 
draft  on  the  same  drawees,  for  a  larger  sum,  payable  at  the 
same  time.  If  the  bank  had  a  right  to  draw  a  draft  for  any 
purpose,  the  abuse  of  the  right,  certainly,  should  not  prejudice 
an  innocent  holder. 


456  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  v.  Wyckoff. 

But  if  there  is  not  sufficient  express  authority  in  the  act, 
there  is  no  prohibition  j  and  I  see  no  reason  why  these  banking 
associations  or  corporations,  if  they  are  to  be  so  called,  have 
not  the  same  right  to  make  such  paper,  as  manufacturing  and 
other  corporations,  which,  like  these  banking  associations,  are 
organized  under  a  general  law  conferring  no  direct  authority  to 
make  negotiable  paper,  but  whose  power  to  do  so  is  neverthe- 
less fully  recognized.  (Mott  v.  Hicks ,  1  Cow.  513;  Moss  v. 
Oakley,  2  Hill,  266.) 

It  is  further  objected  that  the  draft  is  not  signed  by  the  presi- 
dent or  vice  president  as  well  as  cashier,  according  to  the  21st 
section  of  the  act,  which  requires  contracts  made  by  such  asso- 
ciations, and  all  notes  and  bills  issued  for  circulation  as  money, 
to  be  so  signed.  The  term  "contract"  is  ordinarily  applied 
to  agreements  where  both  parties  become  obligated.  And  al- 
though notes  and  bills,  where  but  one  party  is  dound,  are  tech- 
nically contracts,  yet  they  are  not  so  designated  in  ordinary 
legal  phraseology.  If  the  word  "  contract"  was  intended  to 
include  all  paper,  why  was  it  followed  by  tne  clause  specifying 
notes  and  bills  issued  for  circulation  ?  I  do  not  think  the 
provision  of  the  21st  section  of  the  act  was  intended  to  apply 
to  drafts  or  bills  not  intended  for  circulation  as  money,  drawn 
in  the  ordinary  course  of  banking  business  for  transferring 
the  funds  of  the  bank.  If  the  bank  had  purchased  a  bill 
of  exchange  or  draft  payable  to  Us  older,  which  it  wished 
to  sell  again,  as  it  has  a  right  to  do,  is  it  reasonable  to  suppose 
that  it  must  be  endorsed  by  both  president  and  cashier  ?  And 
yet  the  endorsing  is  as  much  a  contract  as  the  drawing  of  a  bill. 
So  also  with  respect  to  certificates  of  deposit.  Such  a  con- 
struction of  the  law  would  subject  the  banks  to  unnecessary  in- 
convenience and  expense.  As  before  remarked,  that  provision 
being  made  expressly  applicable  to  bills  and  notes  issued  for 
circulation  as  money,  leaves  the  inference  that  bills  of  exchange 
and  negotiable  paper  not  intended  for  such  purpose,  may  be 
signed  otherwise.  But  if  the  provision  does  extend  to  such 
paper,  I  see  no  reason  for  it  except  the  protection  of  the  bank  ; 


ALBANY,  DECEMBER,  1842.  457 

» 

Safford  e.  Wyckoff. 

and  if  the  bank  sees  fit  to  waive  the  formality  and  to  pay  its 
paper  of  this  description  not  having  the  signature  of  the  presi- 
dent, as  was  admitted  in  this  case  to  have  been  its  custom,  I 
think  it  should  be  concluded  by  it. 

It  is  perhaps  one  of  the  most  attractive  features  of  the  law, 
that  there  are  certain  general  principles  which  form  prominent 
land-marks,  not  only  to  guide  the  jurist  and  lawyer,  but  which 
are  of  such  obvious  import  and  so  consonant  with  correct  views 
of  right  and  wrong  as  to  be  recognized  by  the  community  gene- 
rally as  their  rules  of  right  action.  They  even  become  max- 
ims in  law ;  and  just  so  far  as  we  depart  from  them,  so  far  are 
we  pretty  certain  to  depart  from  the  safe  paths  of  justice. 
Among  them  is  that  which  declares  that  no  one  shall  be  per- 
mitted to  take  advantage  of  his  own  wrong.  "  Nullus  commo- 
dum  capere  potest  de  injuria  sua  propria."  This  is  a  rule  of 
such  binding  force  as  to  be  held  obligatory  against  the  wrong- 
doer, even  as  between  himself  and  one  cognizant  or  even  par- 
ticipant of  the  wrong.  If  one,  for  the  purpose  of  defrauding 
his  creditors,  conveys  his  property  to  another,  he  cannot  set  up 
the  fraud  to  avoid  the  deed  as  between  himself  and  his  accom-' 
plice  even.  (Jackson  v.  Garnsey,  16  John.  R.  189.)  It  is 
against  public  policy  to  allow  such  conveyances  ;  but  the  fraud- 
ulent grantor  is  not  permitted  to  set  up  such  considerations,  nor 
will  courts  interpose  them  as  between  him  and  his  accomplice 
or  grantee  knowing  the  fraud.  As  to  his  creditors,  the  statute 
declares  the  conveyance  void,  and  it  must  of  course  be  so  ;  but 
even  then  it  will  not  be  held  void  as  against  an  innocent  pur- 
chaser from  the  fraudulent  grantee.  (Anderson  v.  Roberts,  18 
John.  R.  512 ;  Jackson  v.  Henry,  10  John.  R.  185.) 

The  decision  of  the  supreme  court  in  the  present  case  re- 
verses the  maxim,  and  allows  a  party  to  take  advantage  of  his 
own  wrong,  even  as  against  an  innocent  third  party ;  and  thus, 
under  the  plea  of  protecting  the  public,  he  is  allowed  in  fact  to 
protect  himself  at  the  expense  and  loss  of  the  injured  individu- 
als in  part  at  least  composing  the  public.  Is  the  object  at- 
tained even  at  this  sacrifice  of  individual  rights  ?  On  the  con- 

VOL.  IV.  58 


458  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  e.  Wyckoff. 

trary,  would  not  the  object  of  protecting  the  public  be  more 
certainly  attained  by  adhering  to  the  maxim,  which  at  least 
would  be  certain  to  protect  some  of  the  individuals  constituting 
the  public  1  Besides,  if  the  public  seeks  any  other  protection 
than  that  afforded  to  individuals — if  it  seeks  to  enforce  compli- 
ance with  its  laws,  it  should  be  by  becoming  parties  litigant 
and  pursuing  the  proper  public  remedies  (if  it  has  deemed  the 
matter  of  importance  enough  to  provide  any)  for  the  punish- 
ment of  the  wrong-doer  and  to  restrain  him  from  further  wrong. 
If  it  has  not  provided  remedies,  it  should  do  so,  and  not  let  in- 
dividuals suffer.  In  the  case  of  the  fraudulent  conveyance, 
creditors  cannot  take  advantage  of  the  fraud  except  by  becom- 
ing parties  to  a  suit,  and  even  then  innocent  third  parties  are 
not  allowed  to  suffer. 

It  is  against  public  policy  undoubtedly,  that  a  safety  fund 
bank  should  issue  bills  to  be  circulated  as  money,  beyond  the 
amount  allowed  by  its  charter;  but  would  the  bank  be  permitted 
to  set  up  such  a  consideration,  to  defeat  payment  to  a  bonafide 
holder  1  If  the  holder  received  the  bills  knowing  them  to  be 
so  issued,  creditors  of  the  bank  might  interfere,  just  as  credi 
tors  may  interfere  to  avoid  a  fraudulent  conveyance.  It  must 
be  as  much  against  public  policy  to  allow  safety  fund  banks 
to  issue  drafts  or  bills  of  exchange,  as  it  is  to  allow  an  insti- 
tution under  the  general  banking  law  to  do  so  ;  and  yet  that 
privilege  will  hardly  be  denied  them,  although,  since  the  pas- 
sage of  the  act  to  restrict  the  liability  of  the  safety  fund,  the 
public  have  no  more  security  for  payment  in  one  case  than  they 
have  in  the  other.  If  they  can  issue  such  paper  at  all,  they  may  do 
so  to  an  indefinite  amount.  If  it  is  said  that  their  charters  al- 
low it,  then  it  may  be  sai-d  to  be  a  legislative  expression  that 
it  is  not  against  public  policy  to  allow  it.  The  expressions 
used  in  the  charters  and  in  the  general  banking  law,  so  far  as 
regards  "  bills  of  exchange,"  are  alike  ;  and  although  the  clause 
which  authorizes  the  safety  fund  banks  to  issue  "  notes  and 
bills"  is  not  connected  with  the  provision  for  their  security, 
that  being  contained  in  a  separate  general  law,  yet  it  was,  no 


ALBANY,  DECEMBER,  1842.  459 


Safford  t>.  Wyckoff. 


doubt,  equally  the  intention  of  each  system,  to  provide  security 
for  all  paper  to  be  issued  for  circulation  as  money,  and  to  leave 
thejpublic  and  individuals  to  their  own  vigilance  as  regards 
oth#r  dealings  with  the  banks. 

It  is  notorious  that  the  object  of  the  general  banking  law 
was  to  do  away  the  necessity  and  evils  of  applications  to  the 
legislature  for  charters  under  the  safety  fund  system  ;  and  as 
it  would  of  course  supersede  that  system,  if  the  object  is  car- 
ried out,  there  can  be  but  little  doubt  that  the  same  general 
privileges,  as  regards  the  business  of  banking,  were  intended 
to  be  conferred  by  the  new  system.  An  act  passed  in  1835 
recognizes  the  right  of  safety  fund  banks  to  make  "  drafts." 
If  it  was  the  intention  of  the  legislature  to  prohibit  banks  or- 
ganized under  the  general  banking  law  from  exercising  a  privi- 
lege recognized  and  allowed  in  other  banks  and  other  corpora- 
tions, though  not  expressly  conferred,  or  if  such  paper  was 
considered  so  great  a  nuisance,  why  was  it  not  expressly  pro- 
hibited, as  might  have  been  done  in  five  words  ?  Why  were 
there  so  many  expressions  used,  from  which  authority  to  issue 
such  paper  might  well  be  inferred?  And  particularly,  why  did 
not  the  act  of  1840  expressly  provide  against  it,  instead  of 
merely  providing  against  what  seems  to  have  been  considered  the 
only  objectionable  feature,  that  of  being  payable  at  a  future  day  ? 

The  statutes  no  where  prohibit  banking  associations  from 
drawing  tlrafts  or  bills  of  exchange,  nor  do  they  any  where  de- 
clare such  paper  void,  as  is  the  case  with  usurious  paper  and 
prohibited  paper  generally.  Now  it  is  a  well  settled  principle, 
that  illegality  of  consideration  is  no  defence  against  a  recovery 
upon  negotiable  paper  in  the  hands  of  a  bonaf.de  holder,  unless 
the  statute  \vhh-h  makes  it  illegal  also  expressly  declares  thai 
the  note  01  j>ccurity  shall  be  void.  See  the  cares  cited  in  Chitty 
on  Rills,  116,  where  is  quoted  the  language  of  Lord  Kenyon, 
that  "  a  contrary  determination  would  shake  paper  credit  to 
the  foundation."  The  doctrine  was  adopted  by  our  supreme 
court  in  Valldt  v.  Parker,  (6  Wendell,  615,)  where  Chief  Jus- 
lice  Savage  says  :  "  It  is  all  important  to  the  commercial  world, 


460  CASES  IN  THE  COURT  OF  ERRORS. 


Safford  ».  Wyckoff. 


that  courts  do  not  go  in  advance  of  the  legislature  in  rendering 
negotiable  paper  void  in  the  hands  of  an  innocent  endorsee. 
Wherever  the  statutes  declare  notes  void,  they  are  and  must  be 
so,  in  the  hands  of  every  holder  ;  but  where  they  are  adjudged 
by  the  court  to  be  so,  for  failure  or  the  illegality  of  the  consid- 
eration, they  are  void  only  in  the  hands  of  the  original  parties, 
or  those  chargeable  with  notice." 

Is  this,  then,  a  case  in  which  the  courts  may  "  go  in  advance 
of  the  legislature  in  rendering  negotiable  paper  void,"  or  one 
in  which  they  are  called  upon  to  interpose  considerations  of 
public  policy  to  the  sacrifice  of  individual  rights  ?  Or  rather,  did 
not  the  circumstances  and  state  of  the  mischief  intended  to 
to  be  guarded  aga'inst,  require  that  the  bank  should  be  com- 
pelled to  pay  its  paper  of  this  description  1  If  it  was  issued  for 
the  purpose  of  putting  forth  a  spurious  circulating  medium,  or 
otherwise  to  impose  upon  the  community,  and  the  purpose  was  so 
far  carried  out  as  that  the  paper  was  allowed  to  be  protested  and 
sued,  it  is  more  than  probable  that  all  the  mischief  was  accom- 
plished that  could  well  arise,  except  such  as  would  result  from 
non-payment.  Such  attempts  to  impose  upon  the  community 
have  always  but  a  brief  success.  The  fraud  is  soon  known  and 
the  mischief  arrested,  except  that  greatest  of  all,  arising  from 
non-payment.  Then  certainly  considerations  of  public  policy, 
if  allowed  at  all,  required  that  payment  should  be  compelled. 
Had  not  the  evil  in  this  instance  had  its  day,  so  far  at 
least  as  regards  the  issue  of  the  paper  1  Although  the  draft 
was  issued  before,  yet  the  trial  did  not  take  place  till  after  the 
passage  of  the  act  of  1840,  prescribing  penalties  which  it  is 
presumed  were  adequate  to  put  an  end  to  the  further  issue  of 
such  paper,  so  far  as  regards  its  objectionable  features  ;  and 
the  only  evil  that  remained  to  be  provided  against,  was  non- 
payment— the  gist  of  the  whole.  Compel  payment,  and  you 
not  only  remedy  the  evil,  but  inflict  on  the  wrong-doer  the 
only  punishment  that  perhaps  could  be  inflicted. 

To  declare  such  paper  void,  must,  instead  of  preventing,  tend 
rather  to  encourage  and  aggravate  the  evil.  It  holds  out  in- 
ducements to  the  fraudulent  and  reckless  to  enter  upon  further 


ALBANY,  DECEMBER,  1942.  4(J \ 

Safford  r.  Wyckoff. 


attempts  at  similar  frauds.  Under  some  new  and  deceptive 
form,  they  succeed  for  a  brief  time  in  imposing  their  trash  upon 
the  community,  notwithstanding  similar  issues  may  have  been 
declared  void — pocket  the  fruits  of  their  fraud,  and  not  car- 
ing to  pursue  their  fraudulent  purpose  further,  or  rinding  they 
cannot  longer  pursue  it,  gladly  embrace  the  opportunity  which 
the  courts  would  afford  them  of  setting  up  their  own  fraud  to 
protect  themselves  in  their  unlawful  gains.  If  no  penalties 
hav*  been  imposed  to  meet  the  case,  they  go  free  and  protect- 
ed, while  the  innocent  victims  of  their  fraud  alone  suffer. 

B'.it  it  may  be  said  that  although  the  draft  in  this  case  is  void 
ana  cannot  be  recovered  on,  yet  the  consideration  paid  for  it 
may  be  recovered  in  a  suit  for  that  purpose.  If  so,  then  the 
object  attempted  to  be  attained  by  declaring  the  paper  void,  is 
easily  defeated  by  mere  circuity  of  action,  or  by  merely  adopting 
a  different  form  of  action.  Under  the  decision  of  the  supreme 
court  in  this  case,  all  are  deemed  parties  to  the  illegality  ;  conse- 
quently no  recovery  can  be  had  by  one  party  against  another. 
A  party  receiving  a  void  note,  with  notice,  cannot  recover  the 
consideration  paid  for  it.  (Nellis  v.  Clark,  20  Wendell,  24.) 
If  the  plaintiff  cannot  recover  on  the  draft  in  this  case,  the  su- 
preme court  have  undoubtedly  decided  correctly  in  Smith  v. 
Strong,  before  referred  to,  in  which,  since  the  decision  of  the 
present  case,  that  court  have  expressly  held  that  the  endorsee 
cannot  recover  against  the  endorser  of  such  paper.  If  then  the 
plaintiff  cannot  recover  in  this  suit,  he  is  remediless. 

I  am  of  opinion  that  institutions  organized  under  the  general 
banking  law  have,  as  an  incidental  power,  the  right  to  draw 
bills  of  exchange  or  drafts,  in  the  ordinary  form,  not  having 
the  similitude  of  circulating  bills,  for  the  purpose  of  trans- 
ferring their  funds  in  the  ordinary  and  legitimate  business 
of  banking.  Since  the  act  of  1840,  they  must  be  payable  on 
demand,  or,  which  I  presume  is  the  same  thing,  at  sight.  The 
provision  of  that  act  in  this  respect  does  not  appear  to  be  re- 
stricted to  bills  and  notes  to  be  issued  for  circulation  as  money, 
but  extends  to  bills  and  notes  generally. 


462  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  v.  Wyckoff. 

I  do  not  think  that  the  provision  of  the  general  banking  law, 
requiring  contracts  made  by  such  associations,  and  bills  and 
notes  issued  for  circulation  as  money,  to  be  signed  by  the  presi- 
dent or  vice  president  and  cashier,  was  intended  to  be  applica- 
ble to  the  drawing  or  endorsing  of  bills  of  exchange  or  paper 
of  the  description  proved  in  this  case,  not  intended  for  such  cir- 
culation. Or,  if  it  does  apply,  I  am  of  opinion  that  it  can  only  be 
for  the  benefit  of  the  bank  ;  and  if  it  waives  that  formality  and 
pays  paper  of  that  description,  not  so  signed,  as  was  admitted 
to  have  been  its  custom,  it  should  be  bound  by  it. 

But  if  the  general  banking  law  does  not  confer  authority  to 
draw  bills  of  exchange,  it  does  not  prohibit  it,  nor  declare 
paper  issued  by  those  banks  without  authority,  void ;  and  I 
am  of  opinion  that  considerations  of  public  policy  do  not  re- 
quire courts  to  declare  it  void  in  the  hands  of  a  bonafide  hol- 
der, but  rather  that  the  banks  should  be  compelled  to  pay. 

I  am  therefore  of  opinion  that  the  judgment  of  the  supreme 
court,  in  this  case,  should  be  reversed. 

BOCKEE,  Senator.  I  have  no  doubt  that  the  bill  of  exchange 
upon  which  this  suit  is  brought  was  issued  by  authority  of  the 
association,  that  its  issue  was  authorized  by  the  general  bank- 
ing law,  and  that  the  plaintiff  in  error  ought  to  recover.  The 
eighteenth  section  of  the  act  authorizes  associations  organized 
under  the  general  bank-law,  "  to  carry  on  banking  business  by 
discounting  bills,  notes  and  other  evidences  of  debt ;  receiving 
deposits  ;  buying  and  selling  gold  and  silver  bullion,  foreign 
coins  and  bills  of  exchange  ;  loaning  money  on  real  and  per- 
sonal security  ;"  and  further,  "  to  exercise  such  incidental  pow 
ers  as  shall  be  necessary  to  carry  on  such  business."  Buying 
and  selling  bills  of  exchange  is  an  expressly  granted  power. 
It  seems  to  me  that  the  power  of  drawing  bills  is  fairly  inclu- 
ded in,  or  at  any  rate  is  incidental  to  the  power  of  buying  and 
selling.  In  the  business  of  exchange,  mutuality  is  necessity. 
If  a  banking  association  buy  bills  of  exchange,  and  its  funds 
accumulate  at  any  point,  why  may  it  not  draw  as  well  as  sell 


ALBANY,  DECEMBER,  1842.  453 

Saffbrd  v.  Wyckoff. 

bills  of  exchange  1  The  drawing  is  a  prerequisite  to  the  sale 
of  a  bill  j  and  there  is  no  restriction  in  the  act  limiting  the  as- 
sociation to  the  sale  of  such  bills  as  it  may  have  previously 
purchased.  The  drawing  of  bills  of  exchange  is  a  usual,  ordi- 
nary branch  of  the  business  of  banking,  without  which  it  could 
not  be  conveniently  transacted,  and  which  it  can  hardly  be  pre- 
sumed the  legislature  intended  to  prohibit.  Bills  of  exchange 
are  instruments  essentially  different  in  their  nature  and  uses 
from  the  notes  and  bills  contemplated  by  ihe  provisions  of  the 
act  of  1838,  which  are  to  go  into  circulation  as  money  and  con- 
stitute a  part  of  the  currency  of  the  country.  The  several  pro- 
visions and  restrictions  applicable  to  such  notes  or  bills  cannot, 
•with  any  semblance  of  reason,  be  applied  to  bills  of  exchange. 
Does  any  one  suppose  that  bills  of  exchange  are  to  be  made 
payable  at  the  office  or  place  of  business  whence  they  are  is- 
sued ?  Equally  preposterous  is  the  idea  that  a  bill  of  exchange 
issued  by  a  banking  company  must  be  secured  by  a  mortgage 
or  deposit  of  stock  with  the  comptroller,  and  countersigned  by 
the  register.  The  supreme  court  seem  to  apprehend  that  a  re- 
covery against  the  defendant  in  this  case  would  break  down  all 
those  salutary  restraints  which  the  legislature  have  interposed 
to  guard  the  public  against  a  spurious  currency.  Let  us  ex- 
amine the  merits  of  this  proposition,  and  enquire  whether  it 
can  have  any  other  force  or  effect  than  to  sustain  an  ungracious 
defence  and  cheat  the  honest  citizen  out  of  his  rights.  If  bank- 
ing associations  should  issue  paper  in  any  form  not  authorized 
by  the  act  of  1838,  for  circulation  as  money,  what  follows  1 
I  suppose  the  provisions  of  the  restraining  act  are  in  full  force, 
and  that  they  would  be  subject  to  its  penalties.  Moreover, 
every  bill  or  note  discounted  or  security  taken  by  them  on  such 
illegal  loan  or  issue,  would  be  void  and  irrecoverable.  These 
penalties  and  forfeitures  appear  to  me  to  be  a  sufficient  guard 
against  the  evils  anticipated  by  the  supreme  court ;  and  if 
they  are  not  sufficient,  it  is  the  province  of  the  legislature,  not 
of  the  courts,  to  provide  additional  safe-guards.  It  would  not 
be  wise  to  protect  the  public  against  the  possible  contingency 


464  CASES  IN  THE  COURT  OF  ERRORS. 

Safford  ».  Wyckoff. 

of  loss,  by  subjecting  them  to  the  certain  and  immediate  loss 
of  the  amount  of  such  spurious  and  illegal  circulation.  Let  it 
be  conceded  that  the  bill  in  question  is  liable  to  the  objection 
of  having  been  loaned  and  put  in  circulation  as  money  ;  al- 
though such  fact  does  not  appear  in  the  case.  Why  may  not 
the  holder,  who  it  appears  has  paid  a  valuable  consideration, 
and  is  not  justly  chargeable  with  any  ma/a^/ides,  recover  on  it? 
It  is  not  made  void  by  the  act  of  1838,  nor  by  the  provisions 
of  the  restraining  act,  (1  R.  S.  711,)  nor  by  any  other  en- 
actment of  the  legislature  which  I  have  been  able  to  discov- 
er. The  fourth  section  of  the  act  of  1840  amending  "  the  act 
to  authorize  the  business  of  banking,"  which  makes  it  a  misde- 
meanor to  issue  any  bill  or  note  unless  payable  on  demand,  was 
passed  subsequent  to  the  issuing  of  this  bill  of  exchange  and  its 
transfer  to  the  plaintiff  in  error.  That  act  does  not  make  the 
notes  or  bills  issued  and  payable  on  time  void  ;  and  its  penal- 
ties of  fine  and  imprisonment  apply,  not  to  the  holder  of  the  pa- 
per, but  to  the  officer  or  member  of  the  association  who  illegally 
issues  it.  The  fifth  section  of  the  restraining  act  makes  void"  all 
notes  and  other  securities  for  the  payment  of  any  money,  &c. 
made  or  given  to  any  such  association,  institution  or  company, 
that  shall  be  formed  for  the  purpose  expressed  in  the  first  sec- 
tion of  this  title,  or  made  or  given  to  secure  the  payment  of 
any  money  loaned  or  discounted  by  any  incorporated  company 
or  its  officers,  contrary  to  the  provisions  of  the  third  section  of 
this  title."  It  is  not  the  notes  or  securities  illegally  issued  by 
the  company  which  are  made  void  by  the  act,  but  those  which 
are  given  to  the  company  on  the  loan  or  issue  of  notes  or  other 
securities  of  debt  to  be  put  in  circulation  as  money.  The 
penalty  or  forfeiture  is  properly  inflicted  upon  those  who  vio- 
late the  law,  and  not  upon  the  innocent  holders  of  the  paper 
illegally  issued.  Had  the  legislature  been  weak  enough  to 
have  made  these  notes  and  securities  void  in  the  hands  of  the 
holder,  it  would  have  been  offering  a  premium  to  those  who 
transgressed  the  law,  and  inflicting  heavy  forfeitures  upon  the 


ALBAISY,  DECEMBER,  1842.  455 


Safford  o.  Wyckoff. 


innocent  and  unoffending.  It  would  have  been  very  analogeus 
to  the  proceeding  of  the  Irish  mob,  which  sought  to  ruin  a 
banker  to  whom  they  were  hostile  by  burning  all  his  bills  in 
circulation.  The  decision  of  the  supreme  court  is  founded 
mainly  upon  the  presumption  that  bills  like  the  one  in  question 
might  be  used  to  supply  the  ordinary  circulating  medium.  It 
is  true,  they  might  be  so  used,  although  very  inconvenient  and 
inappropriate  for  such  a  purpose  ;  and  so  might  common  bank 
checks  in  their  usual  form  of  negotiability  be  used  for  circula- 
tion as  money.  If  the  doctrine  of  the  supreme  court  be  cor- 
rect, every  check  drawn  \>y  the  cashier  of  a  company  organized 
under  the  general  banking  law  is  a  nullity.  I  am  the  bona 
Jide  holder  of  a  check  drawn  by  the  cashier  of  the  Merchants' 
Exchange  Bank  of  this  city,  upon  another  bank.  The  supreme 
court  tell  me  it  is  a  nullity  because  it  is  not  made  payable  at 
the  office  whence  it  issued  j  it  is  a  nullity  because  it  has  not 
passed  the  ordeal  of  the  comptroller's  office  j  or  perhaps  because 
the  bank  has  not  in  its  vaults,  in  specie,  twelve  per  cent, 
of  the  amount  of  bills  issued.  They  tell  me  moreover, 
that  I  am  a  mala  jftde  holder  of  paper  issued  contrary  to 
public  policy,  not  to  say  contrary  to  public  morals  ;  that 
I  have  not  obtained  the  better  security — that  of  mortgages 
and  stock  deposited  with  the  comptroller — and  therefore  I  shall 
lose  the  security  which  I  have,  and  the  bank  which  issued  the 
illegal  paper  shall  be  gamers  to  the  same  amount.  A  decision 
producing  such  results  cannot  easily  be  reconciled  with  ordina- 
ry sound  discretion  and  with  the  equity  of  our  laws.  The  de- 
cision of  the  supreme  court  ought  to  be  reversed. 

Senators  DICKINSON,  PLAIT  and  ROOT  also  delivered  written 
opinions  in  favor  of  reversing  the  judgment  of  the  supreme 
court  j  and  the  PRESIDENT  delivered  a  written  opinion  in  favor 
of  affirming  the  judgment. 

On  the  question  being  put,   "  Shall  this  judgment  be  re- 
versed 1"  the  members  of  the  court  voted  as  follows : 
VOL.  IV.  50 


466  CASES  IN  THE  COURT  OF  ERRORS. 

Wheeler  v.  Ryerss. 

For  reversal :  Senators  BOCKEE,  CLARK,  DICKINSON,  HAW- 
KINS, HOPKINS,  HUNT,  NICHOLAS,  PECK,  PLATT,  RHOADES, 
ROOT,  VARNEY  and  WORKS — 13. 

For  affirmance :  The  PRESIDENT,  the  CHANCELLOR,  and 
Senators,  BARTLIT,  FAULKNER,  HARD,  PAIGE,  RUGER,  SCOTT 
and  VARIAN — 9. 


WHEELER  vs.  RYERSS  and  others. 

In  ejectment,  mere  evidence  of  a  former  recovery  against  the  plaintiff's  tenant, 
and  of  the  defendant's  entry  under  it  shortly  previous  to  the  commencement  of 
the  present  action,  will  not  rebut  the  presumption  of  title  arising  from  a  prior  un- 
interrupted possession  by  the  plaintiff,  unless  it  appear  that  he  had  knowledge  of 
the  proceedings  against  the  tenant  and  an  opportunity  to  defend.  Semble. 

Where  the  defendant  insisted  at  the  trial  that  such  former  recovery  was  conclusive 
so  as  absolutely  to  bar  the  plaintiff,  and  the  circuit  judge  ruled  the  contrary ; 
held  that,  under  a  general  exception  to  the  decision,  the  defendant  could  not 
raise  the  question  whether  the.  evidence  was  sufficient  to  overcome  the  presump- 
tion arising  from  the  plaintiff's  prior  possession. 

The  case  of  Whitney  v.  Wright,  (15  Wend.  171,)  commented  on,  and  the  re- 
porter's abstract  of  it  corrected.  Per  WALWORTH,  chancellor. 

ON  error  from  the  supreme  court,  where  Ryerss,  Baxter  and 
others,  now  defendants  in  error,  brought  ejectment  against 
Wheeler,  the  plaintiff  in  error,  and  recovered  judgment.  The 
facts  of  the  case,  together  with  the  opinion  of  the  supreme 
court,  are  reported  in  25  Wend.  437  et  seq. 

A.  Warden,  for  the  plaintiff  in  error. 
H.  Welles,  for  the  defendants  in  error 

WALWORTH,  Chancellor.  The  supreme  court  were  right  in 
supposing  that  the  question  whether  the  prima  facie  right  of 
the  plaintiffs  in  the  court  below,  arising  from  the  prior  and 


ALBANY,  DECEMBER,  1&42.  467 

Wheeler  t>.  Ryersa. 

long  continued  possession,  was  not  rebutted  by  a  subsequent 
recovery  against  the  tenant,  so  as  to  compel  the  plaintiffs  to 
produce  their  paper  title,  is  not  raised  by  the  .bill  of  excep- 
•  tions  in  this  case,  and  was  not  in  fact  presented  to  the  consid- 
eration of  the  judge  upon  the  trial.  The  judge  did,  in  sub- 
stance, charge  the  jury,  as  requested  by  the  defendant's  counsel, 
in  relation  to  the  recovery  against  the  tenants  and  their  attorn- 
ment  with  the  assent  of  Baxter ;  and  if  the  jury  regarded 
that  charge  as  it  was  intended,  they  must  have  arrived  at  the 
conclusion  that  the  attornment  of  the  tenants  was  without  the 
consent  of  Baxter.  Whether  Baxter  was  actually  apprised  of 
the  existence  of  the  suit  against  the  tenants  before  the  trial 
thereof,  does  not  appear  by  the  case.  Neither  is  it  shown  that 
the  title,  as  between  Bogert  and  Baxter,  was  in  fact  in  contro- 
versy in  that  suit,  or  that  it  was  brought  forward  on  the  trial. 
And  1  think  it  would  be  too  much  to  say  that  a  landlord  shall 
lose  the  benefit  of  the  legal  presumption  of  title  in  him,  arising 
from  a  prior  uninterrupted  possession  in  himself  and  those  under 
whom  he  claims,  merely  because  his  tenants,  without  his 
knowledge,  have  been  sued  and  suffered  a  verdict  to  pass 
against  them,  without  giving  him  an  opportunity  to  come  in 
and  defend  the  suit.  If  any  decisions  have  gone  that  length, 
they  have  gone  beyond  the  reasons  upon  which  the  decision  of 
this  court  in  Jackson  v.  Rightmyre  (16  John.  Rep.  314,)  was 
founded.  The  actual  decision  of  the  court  in  the  case  of  Whit- 
ney v.  Wright^  (15  Wend.  171,)  I  think  does  not  warrant  the 
language  made  use  of  by  the  reporter  in  his  abstract  of  that  de- 
cision ;  for  the  opinion  of  Mr.  Justice  Bronson  in  that  case 
connects  the  recovery  of  the  premises  from  Porter  with  the 
fact  of  the  virtual  abandonment  by  Cleveland  of  his  possession 
previous  to  that  time,  and  with  his  subsequent  acquiescence 
in  an  adverse  possession  for  thirteen  years  after  the  recovery  in 
the  ejectment  suit,  which  was  in  hostility  to  his  prior  claim. 

It  is  evident  from  the  whole  of  this  case,  that  the  real  ques- 
tion which  the  defendant's  counsel  relied  upon  at  the  circuit, 
was  the  conclusiveness  of  the  former  recovery  as  a  flat  bar  or 


468   •    CASES  IN  THE  COURT  OF  ERRORS 

Kempshall  v.  Burns. 

estoppel  to  any  subsequent  suit  by  the  landlord,  although  he 
could  now  show  a  perfect  paper  title  to  the  premises,  and  upon 
the  attomment  of  the  tenant,  -with  the  alleged  assent  of  Baxter. 
Upon  the  question  of  law,  arising  upon  the  statute,  the  decis- 
ion of  the  judge  was  clearly  right ;  and  the  jury  have  decided 
against  the  plaintiff  in  error  upon  the  question  of  fact  submitted 
to  them  at  the  trial. 

The  judgment  of  the  court  below  should  therefore  be  af- 
firmed. 


BOCKEE,  Senator,  also  delivered  an  opinion  in  favor  of  af- 
firming the  judgment  of  the  supreme  court. 

All  the  members  of  the  court,  twenty  three  being  present, 
concurring  in  this  result,  the  judgment  pf  the  supreme  court 
was  unanimously  AFFIRMED. (a) 

(a)  The  case  of  Rippey  and  another  v.  Ryet  and  others,  was  decided  at  the 
same  time,  and  the  judgment  of  the  supreme  co  Jrt  affirmed  by  the  same  vote.  For 
a  report  of  the  case  in  the  supreme  court,  see  25  Wend.  432  et  seq 


KEMPSHALL  &  EGGLESTON  vs.  BURNS. 

Where,  in  an  action  upon  a  promissory  note  by  one  to  whom  it  had  been  transfer, 
red,  the  payee  was  called  to  prove  that  it  was  given  upon  a  usurious  considera- 
ion ;  held,  that  he  was  not  bound  to  testify,  though  the  note  was  made  and 
lansferrcd  prior  to  the  act  of  May  15th,  1837. 

ON  error  from  the  supreme  court.  For  a  report  of  the  case 
in  the  court  below,  see  24  Wend.  360  to  363.  The  cause  was 
argued  here  by 

C.  P.  Kirkland,  for  the  plaintiffs  in  error,  and 
W.  Tracy,  for  the  defendant  in  error. 


ALBANY,  DECEMBER,  1842.  .}(JC) 


Kencda  T.  Gardner. 


WALWORTH,  Chancellor,  and  FRANKLIN  and  ROOT,  Senators, 
delivered  opinions  in  favor  of  affirming  the  judgment  below. 

The   PRESIDENT,  and  Senators  BARTLIT,  BOCKEE,  CLARK, 
CORNING,  DICKINSON,  DIXON,  HOPKINS,  JOHNSON,   NICHOLAS, 
PAIGE,  RHOADES,  RUGEH,»SCOTT,  VARIAN  and  VARNEY  con 
curred. 

For  reversal :  Senators  HAWKINS,  HUNT,  PLATT  and  WORKS. 

Judgment  affirmed. (a) 
(a)  See  S.  P.  Cloyet  v.  Thayer,  (3  Hill,  564. 


KENEDA,  appellant,  vs.  GARDNER  and  GIBBS,  respondents. 

A  court  of  equity  will  not  relieve  against  a  deed  of  lands  on  the  sole  ground  that  it 
wae  given  while  the  complainant  was  in  possession,  claiming  adversely  to  the 
grantor ;  but  will  leave  the  former  to  his  remedy  at  law.  Per  COWEN,  J. 

The  statute  declaring  void  a  deed  of  lands  held  adversely  to  the  grantor,  was  meant 
for  the  protection  of  the  claimant ;  and  he  may  renounce  the  benefit  of  it  Per 
COWEN,  J. 

Where  the  claimant,  on  being  sued  in  ejectment,  gives  a  cognovit,  his  subsequent 
possession  cannot  be  regarded  as  adverse  to  the  plaintiff;  and  hence,  if  the  lat- 
ter, intermediate  the  cognovit  and  the  entry  of  judgment,  convey  to  a  third  per. 
son,  the  conveyance  will  be  upheld  as  valid,  though  executed  while  the  claimant 
was  still  in  possession. 

APPEAL  from  chancery,  where  Keneda  was  complainant  and 
Gardner  and  Gibbs  defendants.  The  bill  was  dismissed  by  the 
vice-chancellor  of  the  sixth  circuit,  whose  decree  was  affirmed 
by  the  chancellor.  The  complainant  appealed  to  this  court. 
The  facts  are  sufficiently  stated  in  the  opinion  of  COWEN,  J. 

D.  B.  Stockholm,  for  the  appellant. 
Ji.  Gibbs,  for  the  respondents. 


470  CASES  IN  THE  COURT  OF  ERRORS. 


Keneda  v.  Gardner. 


Co  WEN,  J.  The  bill  charges,  among  other  things,  that 
Robert  Keneda,  the  appellant,  possessed  and  claimed  a  right  in 
about  113  acres  of  lot  No.  94,  in  Hector,  Tompkins  county, 
under  a  contract  by  Jacob  RadclifF  to  convey  the  land  ;  that 
such  possession  and  claim  of  right  continued  from  the  year 
1816  till  1834  ;  that  in  1830,  in  order  to  perfect  his  title,  the 
appellant,  fearing  that  Mr.  Radcliff's  might  be  invalid,  received 
a  conveyance  of  the  same  land  in  fee  from  Eleanor  Horton, 
who  claimed  to  own  the  whole  of  lot  94  ;  that  Eleanor  Hor- 
ton had  previously,  in  1824,  but  while  Keneda  was  in  adverse 
possession,  conveyed  the  same  land  by  a  deed  in  fee  to  George 
Gardner,  one  of  the  respondents  j  that  this  deed  was,  how- 
ever, invalid,  by  reason  of  a  fraud  practiced  by  Gardner  upon 
Eleanor  Horton,  and  because  of  the  appellant's  adverse  pos- 
session at  the  time.  On  these  grounds,  among  others,  the  bill 
prayed  that  the  deed  to  Gardner  might  be  vacated. 

The  allegation  of  fraud  was  denied  by  the  answer,  and  is  not 
supported  by  the  proof.  As  to  the  adverse  possession,  it 
seems  that,  in  December  1822,  Eleanor  Horton  sued  the  ap- 
pellant in  ejectment  for  the  same  land,  who,  in  February  1824, 
gave  a  cognovit.  Her  deed  to  Gardner  bears  date  in  October 
of  the  year  1824,  several  months  after  the  cognovit  was  given, 
though  prior  to  judgment  being  entered. 

Without  considering  that  branch  of  the  defence  claimed  to 
arise  out  of  the  RadclifF  mortgage,  and  the  proceedings  with 
the  view  to  a  foreclosure,  there  is,  I  think,  a  fatal  answer  to 
the  case  sought  to  be  made  out  by  the  bill  on  several  grounds. 

1.  The  fraud  not  being  proved,  the  objection  that  the  deed 
could  not  avail  by  reason  of  adverse  possession,  belongs  exclu- 
sively to  a  court  of  law. 

2.  If  not,  all  ground  for  averring  an  adverse  possession  was 
removed  by  the  cognovit.     Eleanor  Horton  sued  Keneda  in 
ejectment,  and,  instead  of  pleading  and  going  to  trial,  he  con- 
fessed her  title  before  she  conveyed  to  Gardner.     Suppose  she 
had  made  a  mere  oral  demand  of  possession  from  him,  asserting 
her  title  at  the  same  time,  and  he  had  replied  admitting  that 


ALBANY,  DECEMBER,  1842.  47] 

Kcncda  v.  Gardner. 

she  was  entitled  to  the  possession  ;  no  pretence  would  remain 
for  saying  that  his  possession  was  any  longer  adverse  within 
the  statute  against  maintenance.  Here  he  has  done  more. 
She  claimed  title,  as  he  knew  or  was  bound  to  know,  for  she 
had  brought  ejectment.  He  deliberately  confessed  her  right  to 
the  possession,  and  the  confession  was  afterwards,  as  he  knew 
it  might  be,  entered  of  record.  It  is  a  solecism  to  say  that  his 
possession  was  any  longer  adverse  to  her.  She  conveyed  to 
Gardner  after  the  confession.  Here  was  any  thing  but  selling 
a  law  suit.  The  question  was  at  an  end  ;  and  she  sold  a  posses- 
sion which  Keneda  had  virtually  agreed  in  writing  she  might  sell. 
The  statute  was  meant  for  his  protection.  He  had  a  right  to 
renounce  such  protection.  He  did  so  ;  and  entered  into  an 
agreement  that  the  betterments  should  be  appraised  and  paid 
for. 

3.  Again,  as  remarked  by  the  chancellor,  if  there  was  an 
adverse  possession,  the  grantor  was  a  particeps  criminis  ;  and 
neither  she  nor  her  assignee  is  entitled  to  relief. 

The  bill  was  dismissed  by  the  court  of  chancery  ;  and  I 
think  correctly.  I  am  for  affirming  the  decree. 

All  the  members  of  the  court  who  heard  the  argument  con- 
curring in  this  result,  the  decree  of  the  chancellor  was  unani- 
mously AFFIRMED. 


472  CASES  IN  THE  COURT  OF  ERRORS. 

Rapelye  c.  Anderson. 


RAPELYE,  appellant,  vs.  ANDERSON,  respondent. 

A  bond  and  mortgage  for  $3000,  payable  one  year  from  date,  with  interest  to  be- 
come  due  half  yearly,  and  on  which  over  five  months  interest  had  already  ac- 
crued, were  assigned  absolutely  by  the  holder  for  $2600,  in  order  to  raise  money. 
The  assignment  stated  the  consideration  paid  by  the  assignee  to  be  $3000,  and 
contained  a  covenant  that  thus  much  was  due  and  owing  on  the  bond  and 
mortgage.  At  the  time  of  executing  the  assignment,  the  assignor  also  executed 
to  the  assignee  a  bond,  with  surety,  conditioned  that  the  mortgagor  should  pay 
the  $3000  together  with  the  interest,  by  the  day  appointed  for  that  purpose  in 
the  securities  assigned.  On  a  bill  filed  by  the  assignor  to  set  aside  the  assign- 
ment and  have  the  bond  of  guaranty  cancelled,  held,  that  the  transaction  was, 
on  its  face,  a  mere  sale  of  a  chose  in  action,  unconnected  with  a  loan,  and  there- 
fore not  usurious  per  se. 

COWEN,  J.  and  RUGER,  senator,  dissented,  being  of  opinion  that  the  transaction 
was  in  effect  a  usurious  loan,  and  that  the  complainant  was  therefore  entitled  to 
the  relief  sought. 

In  an  action  upon  the  bond  of  guaranty,  the  assignee's  recovery  would  be  limited 
to  the  actual  amount  paid  for  the  bond  and  mortgage,  notwithstanding  the  con- 
sideration expressed  in  the  assignment.  Per  FRANKLIN  and  BOCKEE,  senators- 

Various  cases  relating  to  usurious  loans  made  under  color  of  a  sale  of  goods, 
choses  in  action  &c.  cited  and  commented  on.  Per  COWEN,  J. 

APPEAL  from  the  court  of  chancery.  In  May,  1840,  Ander- 
son filed  his  bill  against  Rapelye,  before  the  vice-chancellor  of 
the  first  circuit,  for  the  purpose  of  setting  aside  an  assignment 
by  the  complainant  to  the  defendant  of  a  bond  and  mortgage 
executed  by  John  Anderson,  and  also  to  have  delivered  up  and 
cancelled  a  bond  given  by  the  complainant  and  A.  A.  Remsen 
guarantying  the  payment  of  the  bond  and  mortgage.  The 
facts  of  the  case,  as  they  appeared  upon  the  pleadings  and 
proofs  taken  in  the  cause,  were  substantially  as  follows  :  The 
complainant  held  a  bond  and  mortgage  against  John  Anderson 
for  $3000,  dated  December  8th,  1836,  due  one  year  from  date, 
with  interest  at  the  rate  of  seven  per  cent,  per  annum,  payable 
half  yearly.  In  June,  1837,  the  complainant,  being  in  want 
of  money,  applied  to  the  defendant  to  purchase  the  bond 
and  mortgage,  which  he  agreed  to  do  at  a  discount  of  $400  in 


ALBANY,  DECEMBER,  1842  473 

Rapt-lye  v.  Anderson. 

addition  to  the  interest  then  due  thereon,  provided  the  com- 
plainant would  give  a  bond  signed  by  himself  and  his  father- 
in-law  (A.  A.  Remsen)  guarantying  the  payment  thereof. 
These  terms  were  agreed  to,  and  a  bond  was  accordingly  given 
in  the  penalty  of  §6000,  conditioned  that,  if  the  mortgagor  paid 
to  the  defendant  the  sum  of  $3000  and  interest  on  the  day  the 
mortgage  fell  due,  the  bond  should  be  void  ;  otherwise  to  re- 
main in  full  force.  The  assignment  was  under  seal,  and  con- 
tained a  covenant  that  $3000  was  then  due  and  owing  on  the 
bond  and  mortgage.  No  more  than  $2600  was  in  fact  paid  by 
the  defendant,  though  the  assignment  stated  the  consideration 
to  be  $3000.  The  complainant  claimed  to  be  entitled  to  the 
relief  asked  on  the  ground  that  the  transaction  was  usurious  j 
but  the  assistant  vice-chancellor  of  the  first  circuit,  before  whom 
the  cause  was  originally  heard,  held  otherwise,  and  dismissed  the 
bill.  On  appeal  to  the  chancellor,  this  decision  was  reversed 
and  a  decree  made  declaring  the  assignment,  and  the  bond  ex- 
ecuted simultaneously  therewith,  inoperative  and  void,  and  or- 
dering the  same  to  be  delivered  up  to  the  complainant  and 
cancelled  j  whereupon  the  defendant  appealed  to  this  court. 
For  the  opinions  delivered  by  the  assistant  vice-chancellor, 
and  by  the  chancellor,  see  9  Paige,  484  et  seq. 

J.  W.  Gerard^  for  the  appellant. 
•S.  F.  Clarksori)  for  the  respondent. 

COWEN,  J.  The  appellant  purcnased  of  Robert  Anderson 
a  bond  and  mortgage,  made  to  secure  $3000,  advancing  only 
$2600  ;  and,  at  the  time,  took  from  Anderson  and  A.  A.  Remsen 
a  bond  of  guaranty  conditioned  that  the  mortgagor  should  pay  to 
the  appellant  the  $3000,  with  the  interest  due  on  the  mortgage. 
The  chancellor  held  the  transaction  to  be  usurious,  and,  I  am  of 
opinion,  rightly. 

The  appellant,  in  effect,  took  a  contract  and  security  for  the 
repayment  of  more  than  $400  beyond  the  sum  which  he  ad- 
vanced, whereas  he  was  entitled  to  that  sum  only,  with  interest 

VOL.  IV.  60 


474  CASES  IN  THE  COURT  OF  ERRORS. 


Rapelye  t>.  Anderson. 


upon  it  at  the  rate  of  seven  pejr  cent,  per  annum  for  the  time 
during  which  he  should  be  obliged  to  wait  for  reimbursement. 

There  is  no  rule  of  construction  by  which  the  bond  of  guar- 
anty can  be  said  to  import  less  than  an  obligation  for  the  pay- 
ment of  the  whole  sum  due  upon  the  mortgage. 

This  case  seems  to  me  within  the  very  words  of  the  stat- 
ute of  usury.  That  statute  declares  that  no  person  shall  direct- 
ly or  indirectly  take  or  receive  in  money,  goods  or  things  in 
action,  or  in  any  other  way,  any  greater  sum  or  greater  value 
for  the  loan  or  forbearance  of  any  money,  &c.  than  at  the  rate 
of  seven  per  cent,  per  annum  j  and  that  all  contracts  or  secu- 
rities for  more  than  that  rate  shall  be  void.  (1  R.  S.  760,  2d 
ed.)  Had  the  legislature  intended  to  anticipate  and  condemn 
the  precise  transaction  in  question,  they  could  scarcely  have 
done  so  in  plainer  words,  without  naming  the  parties. 

It  is  said,  here  is  the  purchase  of  a  chose  in  action,  which  is 
not  usury.  But  there  is  more  ;  not  only  a  purchase,  but  secu- 
rity for  the  reimbursement  of  the  purchase  money,  taken  from 
the  man  to  whom  it  is  advanced.  A  surety  is  also  required  to 
join  with  him.  The  naked  purchase  of  a  chose  in  action  is 
lawful  ]  but  a  usurious  transaction  cannot  be  legitimated  be- 
cause a  purchase  happens  to  be  associated  with  it.  A  man 
buys  a  horse,  advancing  one  hundred  dollars  as  the  price,  at 
the  same  time  taking  security  that  his  money  shall  be  repaid 
with  more  than  lawful  interest  j  and  because  he  takes  the 
horse  as  a  purchaser,  he  claims  to  hold  the  same  relation  to 
the  other  branch  of  the  transaction.  This  is  the  length  of  the 
argument. 

But  it  is  said  there  was  not  any  loan  by  the  appellant.  There 
was  an  advance  by  him  of  $2600,  and  security  taken  for  the  re- 
payment of  that  sum  with  more  than  $400  besides.  What  is  a 
loan  within  the  meaning  of  the  statute  of  usury  ?  An  advance 
of  money  upon  a  contract  that  it  shall  be  returned  in  gene're  is 
clearly  so.  (Ord  on  Usury,  25  ;  and  see  Byrne  v.  Kennifeck, 
Batty's  Rep.  269;  Fereday  v.  Wightwick,  1  Taml.  250.) 
That  the  lender  chooses  to  call  it  by  another  name,  does  not 


ALBANY,  DECEMBER,  1842.  475 

Rapclye  o.  Anderson. 

change  its  nature.  The  result  of  the  contract  being  a  loan  and 
an  excess  of  compensation,  no  disguise,  either  by  \vords  or  the 
form  of  the  transaction,  can  change  its  character.  "  We  must," 
says  Lord  Mansfield,  "  get  at  the  real  nature  and  substance  of 
the  transaction  ;  and  where  the  real  transaction  is  a  loan  of 
money,  the  wit  of  man  cannot  find  a  shift  to  take  it  out  of  the 
statute."  (Floyer  v.  Edwards,  Cowp.  114.)  In  Low  v.  Wal- 
ler, (2  Dougl.  739?).  he  said  :  "  Experience  taught  the  legisla- 
ture, in  more  mode&sHimes,  hot  to  particularize  specific  modes 
of  usury,  because  that  only  led  to  evasion  j  but  to  enact,  gen- 
erally, that  no  shift  should  enable  a  man  to  take  more  than  the 
l^gal  interest  upon  a  loan.  Therefore  the  only  question  in  all 
Ci'.ses  like  the  present  is,  what  is  the  real  substance  of  the  trans- 
action, not  what  is  the  color  and  form."  In  that  case,  a  man 
wanting  to  obtain  money,  was  induced  to  buy  goods  worth  only 
120/.,  en  his  bill  of  200/.  It  professed  to  be  a  mere  purchase 
and  sale  of  goods  at  their  full  value.  Yet  Lord  Mansfield  said, 
"  it  was  impossible  to  wink  so  hard  as  not  to  see  that  there 
was  no  idea  between  the  parties  of  any  thing  but  a  loan  of  mo- 
ney." Any  contrivance  by  which  more  than  seven  per  cent, 
is  obtained  as  a  compensation  of  forbearance  on  an  advance  of 
money,  is  a  fraud  upon  the  statute.  It  is  usury  in  itself,  by 
reason  of  the  effect.  The  lender  will  not  be  permitted  to 
argue  that  it  may  possibly  be  innocent.  He  may,  to  be  sure, 
show  that  the  obtaining  more  than  a  due  rate  arose,  in  fact,  from 
some  mistake  in  the  frame  of  the  contract,  or  the  like  ;  but  it 
lies  with  him  to  no  so.  Without  such  an  explanation,  the  law 
looks  to  the  act  and  result  only.  The  rule  is,  as  laid  down  by 
Lord  Tenlerden,  C.  J.  :  "  Every  man  must  be  presumed  to  in- 
tend the  natural  and  ordinary  consequences  of  his  own  act." 
(Hairc  v.  Wilson,  9  Barn.  $•  Cress.  643.)  In  the  language  of 
Golden,  senator,  "  We  must  interpret  acts  by  their  consequen- 
ces^ and  must  presume  persons  intended  to  produce  the  effects 
which  naturally  flow  from  their  acts."  (Mackic  v.  Cairns,  5 
Cowen,  573.)  The  severity  with  which  the  rule  is  applied  in 
cases  of  usury,  may  be  seen  by  the  JVeio-For/c  Firemen's  Inf. 


476  CASES  IN  THE  COURT  OF  ERRORS. 

Rapclye  v.  Anderson. 

Co.  v.  Ely,  (2  Cowen,  678,  705,)  and  The  Bank  of  Utica  v. 
Wager,  (id.  712,  769.)  The  rule  of  these  cases  was  affirmed 
by  this  court.  (8  Cowen,  398.)  The  interest  was  there  taken 
by  way  of  discount  on  the  purchase  of  notes  by  a  bank.  The 
bank  calculated  the  discount  by  a  rule  which  gave  them  but  a 
trifle  more  than  seven  per  cent.  Yet,  as  they  were  aware  that 
the  transaction  would  produce  this  trifle,  their  acts  were  re- 
ceived as^conclusive  evidence  of  a  usurious  agreement.  The 
court  held  they  could  not  escape  this  inference,  except  by 
showing  that  the  result  arose  from  a  mistake  of  fact.  (See 
2  Cowen,  705.) 

On  the  effect  of  selling  a  debt  for  less  than  its  face,  and 
guarantying  its  payment,  no  two  men  can  disagree,  for  it  is 
shown  by  mere  computation.  The  substance  of  the  transaction 
is  thus  stated  by  Pothier  :  "  If  I  sell  you  for  900  livres,  a  debt 
of  1000,  which  I  engage  to  pay  myself  if  the  debtor  does  not, 
it  evidently  is  the  same  thing  as  if  you  lend  me  900  livres  upon 
my  engagement  to  return  you  1000  at  the  end  of  a  certain 
time."  And  he  pronounces  this  to  be  usurious.  (Poth.  Trait, 
du  Contr.  de  Vente,  Tome  2,  pt.  6,  ch.  4,  art.  6,  §  1.)  Trans- 
actions like  this  have  repeatedly  been  held  usurious  in  England. 
(Massa  v.  Dauling,  2  Str.  1243  ;  Lowes  v.  Mazzaredo,  1 
Stark.  Rep.  385  ;  The  King  v.  Ridge,  4  Price,  50 ;  Chapman 
v.  Black,  2  Barn.  &  Jlld.  588.)  In  the  last  two  cases  the 
matter  was  deemed  too  plainly  usurious  to  require  that  the 
question  should  be  left  to  the  jury.  A  sale  out  and  out  of  the 
choses  in  action  was  pretended  ;  but  the  pretext  was  held  so 
unfounded  as  not  to  admit  of  doubt.  No  decision  any  where 
will  be  found  to  go  the  length  now  contended  for  by  the  ap- 
pellant's counsel ;  but  many  may  be  found  against  it.  The 
case  of  Riiffin  v.  Armstrong,  in  North  Carolina,  (2  Hawks' 
Rep.  411,)  is  a  direct  authority  for  declaring  the  transaction  in 
question  usurious,  even  though  the  respondent  alone  had  guar- 
antied the  payment.  There  the  plaintiff  purchased  a  bond  of 
the  defendant  at  a  discount  of  more  than  the  legal  rate  of  inter- 


ALBANY,  DECEMBER,  1842.  477 

Rapelye  c.  Anderson 

est,  the  defendant  endorsing  the  bond  in  a  form  which  bound 
him  to  guaranty  the  payment  of  the  whole  money  due  upon  it. 
Taylor,  Ch.  J.  said  :  "  The  character  and  substance  of  this 
transaction  bespeak  it  to  be  a  loan  of  money,  although  the  par- 
ties constantly  speak  of  a  sale,  and  not  a  whisper  is  heard  rela- 
tive to  a  loan."  He  further  said,  if  it  had  been  a  sale  in  truth, 
the  assignor  would  have  had  nothing  to  do  but  receive  the 
price,  and  leave  the  assignee  to  obtain  the  money  as  he  could 
from  the  obligors.  The  money  was  to  be  raised  for  the  assig- 
nor's benefit,  and  "  if  he  had  meditated  a  sale  of  the  bond,  he 
would  undoubtedly  have  withheld  his  endorsement.  But  by 
adding  that  to  the  bond,  he  undertook  on  his  part  to  repay  the 
money  which  should  be  raised  on  it  in  the  event  of  the  obli- 
gor's delinquency.  This  appears  to  me  to  be  the  unequivocal 
characteristic  of  a  loan,  that  the  money  is  in  all  events  to  be  re- 
paid with  interest  by  the  borrower  himself,  or  cut  of  his  funds." 
He  added,  that  a  sale  of  the  bond  would  have  been  on  the  sole 
credit  of  the  obligors.  All  that  is  here  said  applies,  mutatis 
mutandis,  to  the  case  before  us.  Had  there  been  a  mere  sale 
of  this  bond  and  mortgage,  the  appellant  would  have  been  left 
to  his  remedy  on  the  securities  purchased,  in  which  case  it  is 
not  denied  that  the  $400  might  have  been  thrown  off.  The 
securities  might  have  been  of  a  doubtful  character.  But  the 
appellant  determined,  over  and  above  the  security  afforded  him 
by  the  sale,  to  exact  the  guaranty  both  of  the  borrower  and  his 
friend,  that,  at  all  events,  $3000  should  be  paid  him  for  $2600. 
Suppose  the  appellant  had  advanced  the  §2600,  and  merely  taken 
the  bond  of  the  respondent  and  his  friend  for  $3000  ;  no  one 
would  doubt  of  the  transaction  being  usurious.  This  has  been 
done.  Is  it  then  the  less  usurious  because  the  appellant  exacted' 
another  bond  and  a  mortgage  besides  ?  If  the  true  argument  be 
that  usury  is  lost  in  the  greatness  or  stringency  of  the  security, 
then  indeed  has  the  appellant  been  wronged  by  the  chancellor. 
But  Shylock  has  been  much  more  wronged  by  the  public  estima- 
tion. If  gommon  sense,  however,  be  the  same  both  in  North 
Carolina  and  New-York,  no  injustice  has  been  done  to  either. 


478  CASES  IN  THE  COURT  OF  ERRORS. 

Rapelye  v.  Anderson. 

There  is  sometimes  a  boldness  in  urging  usurious  devices 
upon  courts  of  justice,  which  would  seeia  to  assume  that,  for 
the  sake  of  giving  them  effect,  the  ordinary  rules  of  legal  dis- 
crimination are  to  be  disregarded.  By  some  indirection  a  man 
obtains  more  than  seven  per  cent,  per  annum  for  the  use  of  his 
money,  or  a  security  for  more.  Although  in  fact  he  has  prac- 
ticed that  very  extortion  against  his  neighbor  which  the  statute 
declares  he  shall  not  do  directly  nor  indirectly,  he  qualifies  the 
transaction  by  such  definitions  or  pretexts  as  he  imagines  are 
out  of  the  words  of  the  statute.  He  then  seems  to  expect  that 
these  should  be  adopted  in  the  office  of  legal  construction  ; 
that  the  very  words  of  the  statute  of  usury,  and  the  spirit  of 
every  law  which  sedulously  guards  against  all  evasion,  should 
be  forgotten,  or  that  courts  should  wink  as  hard  in  order  to 
protect  the  usurer  as  he  himself  did  in  the  commission  of  the 
offence.  An  argument  often  urged  is,  that  the  statute  is  con- 
trary to  the  rules  of  political  economy.  The  code  of  McCul- 
loch  and  Jeremy  Bentham  is  invoked  as  of  paramount  author- 
ity. The  customs  of  trade  are  adduced  as  another  ground  ; 
nor  can  it  be  said  that  the  course  even  of  judicial  authority  has 
always  proceeded  entirely  without  the  influence  of  such  consid- 
erations. At  a  very  early  period  interest  was  allowed  to  be  taken 
in  advance,  in  the  name  of  discount.  It  was  said  that,  if  not 
allowed,  every  banker  in  London  would  be  held  guilty  of  usu- 
ry. Some  courts  have  allowed  a  factor  to  take  more  than  le- 
gal interest  on  his  advances,  calling  the  excess  by  the  name  of 
commission.  Men  have  been  allowed  to  lend  their  paper  on 
commissions  which,  though  nominally  limited  to  the  legal  rate 
of  interest,  yet  this  being  also  allowed  to  increase  in  proportion 
to  the  time  the  paper  had  to  run,  might  amount  to  enormous 
usury.  Nor  has  this  court  itself,  perhaps,  been  entirely  free 
from  such  inadvertencies.  In  Cram  v.  Hendricks,  (7  Wend. 
569,)  it  was  held  that  a  man  might  lend  money,  and  take  secu- 
rity of  the  borrower  for  one  per  cent,  a  month.  Cram,  want- 
ing to  raise  money,  applied  by  his  agent  to  Hendricks.  He 
discounted  a  note  held  by  Cram,  taking  the  one  per  cent,  in  ad 


ALBANY,  DECEMBER,  1842.  479 

Rapelyo  r.  Anderson. 

vance.  The  borrower  endorsed  the  note  in  blank,  thus  secur- 
ing the  principal  sum  both  by  his  own  name  and  that  of  the 
maker.  For  the  one  per  cent.,  the  note  was  available  against 
the  maker  only.  This  court  pronounced  the  transaction  to  be 
a  sale  of  the  note  out  and  out,  not  a  lean,  and  sustained  an  ac- 
tion against  the  endorser.  In  the  course  of  the  discussion,  the 
policy  of  all  laws  against  usury  was  very  seriously  questioned. 
It  was  going  n  great  way  to  declare  such  a  transaction  as  that 
a  mere  purchase.  The  defendant  obtained  an  advance  of 
money,  and  provided  for  its  repayment  with  one  per  cent,  per 
month  for  a  certain  time.  In  effect  he  secured  the  payment 
of  usurious  interest  j  and  I  am  not  aware  of  any  other  case 
going  to  sustain  such  a  transaction,  except  Mazuzan  v.  Mead, 
(21  Wend.  285.)  This  adds  no  sanction  to  the  principle  of 
Cram  v.  Hendricks.  The  supreme  court  ruled  the  same  way 
as  this  court  did  on  what  were  believed  to  be  equivalent  cir- 
cumstances, but  on  the  express  authority  of  a  court  having 
power  to  review  the  decision.  I  claim  to  understand  the  views 
of  the  justices  of  the  supreme  court  too  well  to  suppose  them 
in  favor  of  extending  the  principle  cf  Cram  v.  Hendricks  be- 
yond its  exact  circumstances,  comprehending  the  sale  of  nego- 
tiable paper  valid  in  its  concoction. 

The  case  now  before  us  is  plainly  distinguishable  from 
Cram  v.  Hendricks,  and  the  disposition  which  the  chancellor 
has  made  of  it  is  ably  sustained  by  the  argument  of  the  su- 
preme court  of  Kentucky,  relied  upon  by  him.  (Yankey  v. 
Lock/tear t,  4  J.  J.  Marsh.  276.)  The  case  is,  moreover,  ex- 
actly in  point. 

It  is  suggested  that  Cram  v.  Hendricks  has  been  understood 
in  practice  as  extending  to  the  discount  of  all  kinds  of  paper 
valid  in  its  inception,  whether  negotiable  or  not ;  and  that 
farge  investments  have  been  made  upon  that  construction.  The 
argument  claims  too  much.  If  the  fact  be  as  supposed,  which 
it  is  impossible  for  us  to  know  judicially,  the  principle  upon 
which  practical  constructions  like  the  one  urged  upon  us  are 
known  to  proceed,  can  scarcely  commend  them  as  instances  to 


480  CASES  IN  THE  COURT  OF  ERRORS. 

Rapelyo  ».  Anderson. 

be  safely  consulted  by  courts  of  justice.  The  avarice  of  usur- 
ers has  always  been  astute  in  extending  their  line  of  discount. 
Shortly  after  it  was  held  thai  interest  might  be  taken  in  ad- 
Tance  on  discounting  a  bill  or  note,  the  practice  was  extended 
to  paper  which  had  a  long  time  to  run  ;  and  it  was  found  that 
the  decisions,  unless  they  were  limited,  would  open  the  door 
to  most  oppressive  usury.  The  courts,  therefore,  corrected  the 
general  language  in  which  the  earlier  judgments  had  been  an- 
nounced, by  confining  them  to  ordinary  business  paper.  It  was 
indeed  found  that,  without  such  a  restriction,  the  usurer  might, 
in  the  name  of  discount,  absorb  not  only  the  interest  but  the 
principal  of  the  loan,  to  an  amount  in  all  cases  commensurate 
with  the  cupidity  of  the  lender  and  the  wants  of  the  borrower. 
(Com.  on  Usury j  87  to  94.) 

It  would,  no  doubt,  have  been  much  more  in  conformity  with 
the  spirit  of  the  statute,  had  the  courts  held  that  in  no  case 
could  a  sum  exceeding  lawful  interest  be  received  by  way  of 
discount.  The  very  practices  now  urged  furnish  the  best  ar- 
gument against  their  validity.  Every  law  should  be  so  con- 
strued as  to  prevent  its  evasion  ;  a  rule  which  the  statute  of 
usury  carries  upon  its  face.  The  reason  why  such  an  admoni- 
tion was  inserted  is  to  be  found  in  the  history  of  the  statute. 
At  every  step  of  that  history,  both  the  legislature  and  the 
courts  were  met  by  the  protean  devices  of  avarice,  constant- 
ly moving  with  its  hundred  fangs  through  every  region  of 
society;  obdurate,  powerful,  fruitful  in  expedients,  watching 
its  prey  "  with  an  eye  that  never  winked,"  and  pouncing  upon 
it  as  "  with  a  wing  that  never  tired."  The  legislature  was 
baffled  in  the  effort  even  to  catalogue  the  mischiefs  of  such  a 
progress.  It  finally  grouped  them  under  the  name  of  "  le- 
gion," and  confided  the  pursuit  and  punishment  of  the  whole 
category  to  the  general  administrators  of  the  law.  It  is  unfor- 
tunate that,  even  a.mong  them,  individual  instances  plainly  be- 
longing to  the  obnoxious  class  have  sometimes  been  mis 
taken  for  members  of  an  innocent  species.  ,  Such  mistakes  en- 
courage usurious  practices  in  a  two-fold  way ;  first,  by  de- 


ALBANY,  DECEMBER,  1842. 


Rapelyc  t.  Anderson. 


trading  from  their  moral  odium,  and  secondly,  by  inducing  a 
hope  that  legal  impunity  may  be  secured  under  colorings  and 
distinctions,  no  matter  how  bungling  and  even  puerile.  1  for- 
bear to  discuss  the  policy  of  the  usury  law,  as  judges  have  oc- 
casionally done.  The  law  is  found  in  the  statute  book.  If  its 
credit  in  the  eyt  of  political  economy  were  as  far  depreciated 
as  the  sumptuary  laws  of  feudal  Europe,  even  that  would  fur- 
nish no  argument  against  enforcing  a  subsisting  law  according 
to  the  spirit  and  intent  of  its  framers.  , 

Courts  may,  indeed,  by  a  narrow  and  illiberal  course  of  ad- 
judication, by  a  fear  of  affixing  proper  names,  or  by  referring 
things  to  the  jury  box  which  should  be  dealt  with  as  questions 
of  law,  render  the  statute  in  question  or  any  other  statute 
weak  and  inefficient.  This  is  the  too  common  fate  of  laws 
made  for  the  suppression  not  only  of  usury  but  of  fraud.  No 
relief  from  individual  hardship  afforded  by  such  courses,  can 
compensate  for  the  disgrace  which  they  bring  upon  the  general 
administration  of  the  law  ;  and  it  would  be  better  if  the  few 
cases  which  give  them  countenance  were  at  once  overruled. 

On  the  whole,  I  am  entirely  satisfied  with  the  disposition 
which  the  chancellor  has  made  of  this  case,  and  hope  his  de- 
cree will  be  affirmed. 

FRANKLIN,  Senator.  George  Rapelye,  the  appellant,  re- 
ceived of  Robert  Anderson  an  assignment  of  a  bond  and  mort- 
gage made  by  John  Anderson  to  the  respondent,  and  given  to 
secure  the  sum  of  three  thousand  dollars  with  interest  j  for 
which  the  appellant  paid  and  advanced  the  sum  of  twenty-six 
hundred  dollars,  and  at  the  same  time  took  from  the  respondent 
a  collateral  bond  executed  by  himself  and  Abraham  A.  Remsen 
in  the  penalty  of  six  thousand  dollars,  with  a  condition  that,  in 
case  the  mortgagor  should  pay  the  amount  secured  by.the  bond 
and  mortgage  with  interest,  the  same  should  be  void,  other- 
wise to  remain  in  full  force  and  virtue.  Upon  this  statement  of 
facts,  a  bill  was  filed  in  the  court  of  chancery  before  the  vice 
chancellor  of  the  first  circuit,  to  set  aside  the  assignment  and 

VOL.  IV.  61 


482  CASES  IN  THE  COURT  OF  ERRORS. 

Rapelye  v   Anderson. 

compel  the  appellant  to  give  up  the  collateral  bond  of  Ander- 
son and  Remsen,  upon  the  ground  that  the  transaction  was  in 
violation  of  the  statute  to  prevent  usury,  and  consequently 
void.  The  cause  was  heard  before  Assistant  Vice- Chancellor 
Hoffman,  who  dismissed  the  bill,  and,  upon  appeal  to  the  chan- 
cellor, his  decision  was  reversed  j  and  hence  the  present  ques- 
tion. 

The  principle  is  well  settled,  that  if  a  person  loan  money  at 
a  higher  rate  of  interest  than  seven  per  cent,  per  annum,  the 
transaction  is  usurious  and  void.  But  to  my  mind  there  is  a 
clear  and  palpable  distinction  between  the  purchase  of  a  chose 
in  action,  legal  in  its  inception,  and  the  loaning  of  money  ; 
and  that  the  principles  of  law  which  govern  and  control  the 
former,  are  not  applicable  to  and  have  no  binding  effect  upon 
the  latter.  This  distinction  has  been  recognized  in  many  in- 
stances in  our  own  courts,  and  appears  now  to  be  the  well 
settled  and  established  law  of  the  land.  In  the  early  case  of 
Brown  v.  Matt,  (7  John.  R.  361,)  it  was  said  that,  if  the  plain- 
tiff had  purchased  the  note  at  a  price  less  than  its  nominal 
value,  he  could  not  have  recovered  from  his  immediate  endorser 
more  than  the  amount  he  actually  paid  for  the  same.  It  is  true 
that,  in  the  case  cited,  the  question  of  usury  was  not  directly  in 
issue,  and  consequently  the  observation  was  accidental :  but  it 
nevertheless  shows  the  opinion  of  the  court  as  fully  as  it  would 
have  done  had  the  remark  been  made  upon  a  plea  of  usury.  A 
similar  doctrine  was  held  in  the  case  of  Braman  v.  HCSS,  (13 
John.  R.  52,)  in  which. the  court  said  that,  where,  on  the  en- 
dorsement of  a  note,  the  consideration  passing  between  the  en- 
dorsee and  the  endorser  is  less  than  the  amount  of  the  note, 
the  endorsee,  in  an  action  against  the  endorser,  can  recover  no 
more  than  the  consideration  he  has  actually  paid.  Again,  in 
the  case  <3f  Munn  v.  The  Commission  Company r,  (15  John.  R. 
44-,)  where  the  note  was  valid  as  between  the  original  parties, 
BO  that  an  action  could  be  maintained  upon  it,  it  was  held  to  be 
valid  also  in  the  hands  of  an  endorsee  who  had  discounted  it  at  a 
higher  rate  of  interest  than  seven  per  cent,  per  annum,  and  that 


ALBANY,  DECEMBER,  1842.  433 

Rapelye  t.  Anderson. 

he  might  recover  the  whole  amount  against  the  maker  ;  but  that, 
as  against  the  endorser,  no  more  could  be  recovered  than  the 
amount  actually  paid.  In  the  case  of  Powell  v.  Waters,  (8  Cowen, 
669,)  the  late  Chancellor  Jones,  in  delivering  the  opinion  of 
this  court,  remarked  :  "  A  note  which  has  been  negotiated  by 
the  maker,  and  might,  if  at  maturity,  be  enforced  against 
him  by  the  holder,  may  be  sold  at  a  greater  discount  than  the 
rate  of  seven  per  cent,  per  annum.  But  the  note  must  be  per- 
fect and  available  to  the  holder,  to  make  it  saleable  by  him. 
The  test  is,  the  right  to  maintain  an  action  upon  it  against  the 
parties,  if  it  was  then  due."  And  the  late  Senator  Golden  ob- 
served in  the  same  case,  that  a  note  or  security  originally  given 
for  a  legal  consideration,  could  not  afterwards  become  usurious, 
at  whatever  rate  it  might  have  been  purchased  or  discounted. 
Now  it  is  not  contended  that,  as  between  the  mortgagor  and 
mortgagee  in  the  case  under  consideration,  there  was  anything 
which  would  have  prevented  the  latter  from  sustaining  an  ac- 
tion upon  the  bond,  or  from  selling  the  mortgaged  premises. 
The  bond  and  mortgage  were  not  tainted  with  fraud  or  usury, 
but  were  valid  and  legal  contracts  which  could  be  enforced. 
In  the  case  of  Cram  v.  Hendricks,  (7  Wend.  R.  569,)  re- 
cently decided  by  this  court,  and  to  which  reference  was 
so  often  made  in  the  course  of  the  argument,  it  was  held, 
after  mature  and  serious  deliberation,  most  of  the  cases  a 
bearing  upon  this  point  having  been  collected  with  great 
care,  that  discounting  a  business  note  at  a  rate  of  interest 
greater  than  seven  per  cent,  per  annum,  was  not  a  usurious 
transaction  ;  that  a  note  valid  in  its  inception  might  be  bought 
and  sold  as  a  chattel  at  its  real  or  supposed  value ;  that  the 
transfer  by  the  payee  of  a  valid,  available  note,  upon  which  he 
might  maintain  an  action  against  the  maker  and  which  he  parts 
with  beyond  the  legal  rate  of  interest,  is  not  usurious,  although 
the  payee  on  such  transfer  endorses  the  note  j  and  that,  on  non- 
payment by  the  maker,  the  endorsee  might  maintain  an  action 
against  the  endorser.  The  case  of  Rice  v.  Mather,  (3  Wend.  R. 
62,)  recognizes  the  same  doctrine.  That  was  an  action  brought 


484  CASES  IN  THE  COURT  OF  ERRORS. 

Rapelye  ».  Anderson. 

to  recover  the  sum  of  $948,50,  being  the  amount  due  upon  a 
promissory  note  drawn  by  E.  Mather  &  Co.  in  favor  of  and 
endorsed  by  Keeler  &  Mather,  and  discounted  by  the  plaintiff 
at  the  rate  of  one  per  cent,  a  month.  The  defence  set  up  was 
usury  ;  but  the  court  held  that,  according  to  its  uniform  decis- 
ions, this  clearly  was  not  a  usurious  transaction  j  that  the  note 
was  an  available  instrument  in  the  hands -of  the  original  payee  ; 
that  there  was  no  usury  in  its  origin,  and  therefore  the  purchase 
or  discount  of  it  at  a  sum  less  than  its  face,  did  not  taint  the 
note  with  usury. 

The  same  (loctrine  which  is  applicable  to  promissory  notes 
and  bills  of  exchange,  and  which  governs  and  controls  actions 
brought  upon  them,  must,  I  apprehend,  govern  and  control  the 
judgment  of  the  court  in  the  case  ndw  under  review.  Was 
this  transaction  then  an  absolute  sale  within  the  legal  construc- 
tion of  the  term,  or  was  it  a  loan  of  money  under  the  form  and 
character  of  a  sale,  merely  for  the  purpose  of  avoiding  the 
statute  against  usury,  and  to  be  governed  by  the  principles  of 
law  applicable  to  cases  of  loans  1  Or,  to  use  the  language  of  Sen- 
ator Beardsley,  in  the  case  of  Cram  v.  Hendricksj  "  what  is  the 
real  substance  of  the  transaction  1  not  what  is  its  color  anrl 
form  ;  was  it  a  loan,  and  the  intent  of  the  parties  to  cover  usu- 
ry, or  was  it  an  absolute,  bonafide  sale  T'  The  component 
parts  of  a  loan  are  a  voucher  or  contract  specifying  the 
nature  of  the  transaction,  the  time  of  payment  or  redemp- 
tion, the  rate  of  interest  for  the  use  of  the  money  loaned,  and  the 
intention  of  one  to  loan  arid  the  other  to  borrow.  Nothing  ap- 
pears upon  the  pleadings  in  this  cause  which  establishes  any 
such  transaction  or  intention  between  the  contracting  parties  j 
but  upon  the  contrary,  the  assignment  purports  to  be  a  bargain 
and  sale  of  the  bond  and  mortgage  of  John  Anderson  to  the 
appellant  George  Rapelye.  No  time  of  redemption  is  specified, 
nor  rate  of  interest  which  is  to  be  paid  and  received  for  the 
money  advanced,  but  it  is  a  simple  transfer  from  one  person 
to  another  in  the  ordinary  and  usual  way  of  disposing  of 
bonds  and  mortgages.  It  is  true,  the  bill  of  the  respondent 


ALBANY,  DECEMBER,  1842.  43$ 

Rapelyc  c.  Anderson. 

charges  that  it  was  a  loan  of  money  and  not  a  bona  fide 
sale  j  but  the  answer  of  the  appellant  repudiates  the  idea 
of  a  loan,  and  denies  absolutely  and  unequivocally  that  he 
did  loan  or  agree  to  loan  to  the  complainant  any  sum  of 
money  whatever  for  which  the  complainant  gave  to  the  de- 
fendant the  bond  and  mortgage  of  John  Anderson  and  wife 
and  the  collateral  bond  of  Robert  Anderson  and  Abraham  A. 
Remsen  as  security  for  the  repayment  of  the  same  by  the  said 
Robert  Anderson  ;  but  alleges  that  the  said  bond  and  mort- 
gage of  John  Anderson  and  wife  were  purchased  by  him  in  good 
faith,  and  so  sold  and  assigned  to  him  in  consideration  of  the 
sum  of  $2600,  which  he  actually  paid  and  advanced  for  the 
same.  But  he  admits  that  the  deed  poll  of  assignment  con- 
tained a  covenant  by  the  complainant  that  there  was  then  due 
and  owing  upon  the  said  bond  and  mortgage  the  sum  of 
$3000.  There  is  no  testimony  in  the  case  which  supports 
the  allegation  in  the  bill,  or  which  goes  to  show  that  there  was 
any  negotiation  or  agreement  between  the  parties  except  for 
a  sale  of  the  bond  and  mortgage.  Upon  the  contrary,  one 
witness  swears  that  the  object  of  Mr.  Anderson's  calling  upon 
Mr.  Rapelye  was  to  negotiate  the  sale  of  the  bond  and  mort- 
gage, and  that  the  subject  of  conversation  between  them  was  in 
reference  to  such  sale  ;  and,  although  he  was  present  at  several 
interviews  between  them,  he  never  heard  any  thing  said  in  re- 
lation to  a  loan. 

But  it  is  contended  that  this  ought  to  be  considered  as  a  loan, 
in  consequence  of  a  collateral  bond  having  been  given  and  re- 
ceived to  secure  the  ultimate  payment  of  the  sum  of  $3000 
and  interest  for  which  the  original  bond  and  mortgage  were 
given,  and  for  which  only  $2600  had  been  paid  by  the  appel- 
lant. But  I  am  unable  to  distinguish  this  case  from  that  of 
Cram  v.  Hendricks,  or  from  the  still  stronger  one  of  Mczuzan 
v.  Mead,  (21  Wend.  285,)  in  which  a  note  of  $210  was 
sold  for  $200,  being  a  greater  discount  than  legal  interest, 
and  the  seller  guarantied,  in  express  terms,  to  pay  not  only  the 
$200  and  interest,  but  the  amount  payable  by  the  face  of  the 


486 


CASES  IN  THE  COURT  OF  ERRORS. 


Rapelye  v.  Anderson. 


note.  Mr.  Justice  Cow  en,  in  delivering  the  opinion  of  the  cour* 
in  that  case  said,  "a  usurious  intent  is  not  to  be  inferred, 
inasmuch  as  the  plaintiff  cannot  in  legal  effect  recover  and 
does  not  in  truth  seek  to  recover  more  than  he  advanced,  with 
the  legal  interest.  If  such  were  the  express  agreement  at  the 
time,  it  would  clearly  take  away  the  sting  of  usury ;  and  if  that 
appear  upon  the  face  of  the  declaration  to  be  but  the  legal  effect 
of  tke  guaranty,  then  the  case  is  the  same.  Had  the  defendant 
simply  endorsed  the  note,  leaving  himself  to  be  charged  in  the 
usual  way,  by  demand  and  notice,  the  transaction  would  not 
have  been  usurious." 

If  the  condition  of  the  bond  of  guaranty  of  Anderson  and 
Remsen  had  been,  that  in   case  John  Anderson,  the  original 
obligor,  did  not  pay  the  sum  of  $3000  and  interest  secured  by 
his  bond  and  mortgage,  that  then  and  in  that  case  they  would, 
it  would  have  presented  no  stronger  case  than  the  endorsement 
of  Cram  on  the  note  of  Hendricks,  or  the  guaranty  mentioned  in 
the  case  of  Mazuzan  v.  Mead.   The  condition  of  this  bond,  how- 
ever, is,  not  that  Anderson  and  Remsen  would  pay  the  sum  of 
$3000  and  interest  if  the  obligor  John  Anderson  did  not,  but  that 
if  he  did  pay  that  amount,  then  the  bond  was  to  be  void,  other- 
wise to  remain  in  full  force  and  virtue  :  so  that  upon  the  prin- 
ciple laid  down  and  decided  in  the  case  of  Cram  v.  Hendricks 
and  Mazuzan  v.  Mead,  the  amount  which  could  be  collected 
by  Rapelye  would  have  been,  not  the  consideration  expressed 
in  the  assignment,  or  the  amount  for  which  the  bond  and  mort- 
gage of  John  Anderson  were  given,  but  the  actual  sum  receiv- 
ed from  Rapelye,  being  $2600,  together  with  the  interest  whicl 
might  have  accrued  thereon  from  the  time  of  the  actual  receip 
thereof. 

The  consideration  of  $3000  being  expressed  in  the  assign- 
ment, cannot  alter  the  legal  construction  of  this  collateral  bond 
of  guaranty  ;  for  the  question  of  usury  cannot  depend  upon  the 
ease  or  difficulty  of  proving  the  transaction.  The  facts  render 
it  usurious  or  not.  The  difficulty  or  ease  with  which  those  facts 
can  be  substantiated  or  proved  does  not  and  ought  not  to  enter 


ALBANY,  DECEMJJEK,  l»«.  437 

Rapelye  v.  Andereon. 

Into  the  question.  The  true  consideration  could  always  be  ex- 
plained by  parol  testimony  j  for,  as  I  understand  the  law,  it  is  a 
well  settled  and  established  rule,  that  although  parol  evidence 
cannot  be  admitted  to  contradict,  add  to  or  vary  the  terms  of 
a  will,  deed  or  other  instrument  in  writing,  yet  it  will  be  receiv- 
ed to  establish  another  consideration  consistent  with  the  nature 
of  the  consideration  contained  in  the  deed  or  instrument.  For 
instance  :  in  the  case  of  a  deed  purporting  to  convey  property 
in  consideration  of  money  paid,  although  it  would  not  be  ad- 
missible to  prove  that  a  marriage  contract,  and  not  the  money, 
was  the  inducement  or  consideration  for  the  conveyance,  be- 
cause that  would  contradict  the  deed ;  yet  it  would  be  admissi- 
ble to  prove  that  a  moneyed  consideration,  greater  or  less  than 
that  contained  in  the  deed,  was  given  for  the  same.  This  prin- 
ciple is  clearly  established  in  the  case  of  Betts  v.  The  Union 
Bank  of  Maryland,  (1  Harris  fy  GiWs  Reports,  175,)  and,  in 
our  own  courts,  in  the  cases  of  Bowen  v.  Bell,  (20  John. 
Rep.  338,)  and  Whitbeck  v.  Whitbeck,  (9  Cowen,  266.) 

The  principle  involved  in  this  case  is  an  exceedingly  impor- 
tant one,  affecting,  as  it  does,  property  to  an  immense  amount  ,• 
for  transactions  similar  to  this  are  of  almost  every  day's  occur- 
rence, in  which  bonds  and  mortgages  are  purchased  for  a  sum 
less  than  that  for  which  they  were  originally  given,  and  trans- 
ferred from  one  party  to  another  by  assignments  containing 
covenants  of  guaranty,  and  in  very  many  instances  with  collate- 
ral bonds  similar  to  the  one  now  under  consideration.  Such  con- 
tracts, however,  cannot  in  my  opinion  be  construed  into  loans  of 
money  to  be  adjudged  void  on  the  ground  of  usury  under  the  de- 
cisions to  which  I  have  referred, but,  according  to  the  spirit  and 
true  construction  of  those  cases,  must  be  sanctioned  and  upheld. 
I  am  therefore  of  the  opinion  that  the  assistant  vice-chancel- 
lor was  clearly  justified  in  the  decree  which  he  made,  and  that 
the  decision  of  the  chancellor  should  be  reversed. 

BOCKEE,  Senator.  The  complainant  charges  in  his  bill,  that 
the  mortgage  against  John  Anderson  was  assigned  to  secure 


488       CASES  IN  THE  COURT  OF  ERRORS. 

Rapelye  v.  Anderson. 


the  repayment  of  a  corrupt  and  usurious  loan  made  by  the  ap- 
pellant to  him.  The  answer  of  the  appellant  denies  all  usury, 
and  none  is  proved,  unless  it  appears  on  the  face  of  the  assign- 
ment and  bond.  The  assignment  purports,  in  consideration  of 
the  sum  of  $3000,  to  assign  and  transfer  a  bond  and  mortgage 
against  John  Anderson,  with  a  covenant  that  there  was  due  on 
said  bond  and  mortgage  the  sum  of  $3000.  The  actual  con- 
sideration paid  en  the  assignment,  as  appears  by  the  testimony 
of  Remsen  and  the  answer  of  Rapelye,  was  $2600.  So  far  there 
is  obviously  no  taint  of  usury  in  the  transaction'.  If  the  appel- 
lant collected  his  money  of  the  mortgagor,  he  made  a  good  bar- 
gain ;  and  he  might  lose  the  whole  of  it,  by  reason  of  prior  in- 
cumbrances  on  the  mortgaged  premises  or  insufficiency  of  value, 
and  could  have  no  recourse  to  Robert  Anderson  on  the  covenant 
in  his  assignment.  But  the  appellant  goes  further,  and  takes 
from  Robert  Anderson  a  bond  in  the  penal  sum  of  $6000,  with 
surety,  conditioned  that  if  the  mortgagor,  John  Anderson,  should 
pay  the  sum  of  $3000  according  to  the  condition  of  said  mort- 
gage, then  the  obligation  to  be  void,  otherwise  to  remain  in  full 
force.  The  bond  and  the  assignment  are  no  doubt  to  be  taken 
together  as  parts  of  one  transaction,  and  if  there  is  usury  in 
either,  both  are  vitiated.  It  is  obvious  that  the  arrangement 
between  these  parties  might  be  a  contrivance  to  cover  a  usu- 
rious loan.  Even  a  sale  of  goods  may  be  usurious,  as  was 
adjudged  by  Lord  Mansfield  in  the  case  of  Lowe  v. .  Waller,  (2 
Douglass,  735,)  where  the  circumstances  clearly  showed  the 
intention  of  the  parties  to  cover  a  usurious  loan  under  the  dis- 
guise of  a  sale  of  goods.  The  application  in  that  case  was  for 
a  loan  of  money,  and  negotiations  for  such  loan  being  continued 
for  some  length  of  time,  were  closed  by  a  sale  of  goods  at  a  great 
advance  above  their  value.  It  was  found  by  the  verdict  of  a  jury 
that  the  bill  given  on  such  sale  was  usurious,  and  the  verdict  was 
sustained  by  the  court. 

The  true  and  only  point  in  this  case  is,  whether  the  ar- 
rangement between  these  parties  was  a  device  to  cover  a 
usurious  loan.  Unconnected  with  a  loan  of  money  or  usu- 
rious agreement,  I  suppose  any  person  may  buy  or  sell 


ALBANY,  DECEMBER,  1842.  4Q9 

Rapclye  r.  And 


without  violating  the  statute  of  usury.  He  may  relieve  his 
necessities  by  buying  dear  or  selling  cheap,  and  the  person  with 
whom  he  deals  will  not  be  punishable  for  usury.  In  this  case 
there  is  no  evidence  of  any  agreement  between  these  parties 
respecting  a  loan  of  money.  There  was  no  application  to  bor- 
row, and  no  offer  to  lend.  There  are  no  circumstances  that  I 
can  discover  in  the  evidence  in  the  cause,  to  show  the  transac- 
tion between  these  parties  usurious,  unless  the  bond  of  guaranty 
above  recited  makes  it  so.  Suppose  that  John  Anderson,  the 
mortgagor,  had  paid  to  Rapelye  the  $3000,  with  interest,  accord- 
ing to  the  condition  of  his  bond  ;  from  the  facts  disclosed  in 
this  case,  would  he  not  be  entitled  to  retain  the  money  as  the 
purchaser  and  assignee  of  the  bond  and  mortgage  1  I  think  an 
action  would  not  lie  in  favor  of  Robert  Anderson  to  recover  any 
part  of  the  mortgage  money  thus  paid.  Viewing  the  case  in  this 
aspect,  I  should  hesitate  in  pronouncing  it  a  case  of  usury.  It 
seems  to  be  marked  and  identified -as  a  sale  of  a  mortgage  secu- 
rity, not  as  a  loan  of  money.  The  guaranty  above  mentioned 
is,  that  the  mortgagor,  John  Anderson,  shall  pay  the  83000. 
It  is  not  in  the  alternative  that  the  obligors  shall  pay  that  sum. 
If  John  Anderson  does  not  pay,  the  obligors  are  left  merely  on 
the  ground  of  their  legal  liability.  The  judgment  is  entered 
for  the  sum  of  $6000,  and  the  court  may  direct  by  endorse- 
ment on  the  execution  a  collection  of  the  sum  equitably  due,  or, 
on  assessment  of  damages  by  a  jury,  they  may  award  the  sum 
actually  paid  on  the  assignment  and  sale  of  the  rfortgage.  It 
may  be  admitted  that,  prima  facie ,  the  rule  of  damages  would  be 
the  sum  of  $3000,  the  consideration  mentioned  in  the  assign- 
ment. So  it  was  in  the  case  of  Cram  v.  Hendricks.  Grain 
stood  on  the  ground  of  legal  liability  as  general  endorser  of  a 
promissory  note,  and  the  rule  of  damages  against  him  was, 
prima  facie,  the  amount  of  the  note.  The  court,  by  limiting  the 
amount  of  the  recovery  to  the  actual  consideration  of  the  en- 
dorsement, refused  to  give  a  construction  which  would  render 
the  contract  usurious.  It  cannot  be  maintained  that  there  is 
any  difference,  as  regards  this  question  of  usury,  between  the 
VOL.  IV.  62 


490  CASES  IN  THE  COURT  OF  ERRORS. 


Rapelye  v.  Anderson. 


negotiation  of  bills  and  notes,  and  other  securities.  The  case 
of  Cram  v.  Hendricks,  decided  in  this  court,  is  binding  and 
authoritative,  and  I  cannot  discover  a  hair's  breadth  of  differ- 
ence  between  that  case  and  the  present.  The  case  of  Yankey  v. 
Lockheart  4>  Burton^  cited  by  the  chancellor  from  the  court  of 
appeals  in  Kentucky,  is  certainly  in  direct  conflict  with  the  case 
of  Mazuzan  v.  Mead,  decided  by  the  supreme  court.  In  both 
these  cases  the  consideration  was  truly  stated  in  the  assign- 
ment, and  was  less  than  the  amount  of  money  due.  In  both 
cases  the  agreement  on  the  part  of  the  vendor  was  expressly  to 
pay,  not  the  amount  of  the  consideration  of  the  assignment, 
but  the  amount  of  the  note  or  security  transferred.  It  appears 
to  me  that  human  ingenuity  can  point  out  no  difference  in  prin- 
ciple between  the  facts  of  the  two  cases  j  but  the  decisions  are 
variant.  The  chancellor  seems  to  have  placed  an  undue  reli- 
ance on  the  decision  in  the  case  of  Yankey  v.  Lockheart  fy  Bur- 
tonj  which  I  hold  to  be  of  no  authority.  I  cannot  think  it  en- 
titled to  any  weight,  either  by  way  of  argument  or  authority, 
when  it  stands  the  open  and  direct  antagonist  of  the  decisions 
of  our  own  courts.  My  opinion  is,  that  the  chancellor's  decree 
should  be  reversed  and  the  complainant's  bill  dismissed. 

RUGER,  Senator.  It  is  quite  certain  from  all  the  circum- 
stances, that  it  was  the  intention  of  Rapelye  to  secure  to  him- 
self a  premium  of  more  than  $500  for  the  use  of  $2600  for 
the  short  perfod  of  a  little  over  five  months.  The  whole  trans- 
action, to  my  mind,  savors  of  an  intent  to  accomplish  indirect- 
ly what  the  law  would  not  allow  to  be  done  directly.  The 
transaction  has  very  little  of  the  character  or  semblance  of  a 
sale  about  it.  A  fraudulent  intent  to  evade  the  law  against 
usury  may  be  inferred  from  the  insertion  of  a  false  considera- 
tion in  the  assignment.  At  least,  a  party  must  be  held  to  in- 
tend the  necessary  effect  of  his  own  deliberate  acts ;  and  the 
necessary  effect  of  this  transaction,  if  allowed,  will  be  to 
enable  Rapelye  to  realize  a  usurious  rate  of  interest  for  the  use 
of  his  money. 


ALBANY,  DECEMBER,  1842.  491 

Rapcljo  r.  Andereon. 

The  lawful  interest  on  the  money  advanced  by  Rapelye 
would  have  been  about  eighty-two  dollars  j  but,  by  contrivance, 
he  secured  an  interest  or  premium  of  over  five  hundred  dol- 
lars. And  how  has  he  done  it  ?  Not  directly,  by  taking  the 
obligation  of  Robert  Anderson  to  pay  him  that  interest  or  pre- 
mium ;  but  indirectly^  by  taking  the  bond  of  Robert  Anderson 
and  A.  A.  Remsen,  conditioned  that  the  interest  or  premium 
shall  be  paid  him  by  John  Anderson,  a  third  person.  Should 
this  mode  of  getting  round  a  statute  meet  with  favor  in  our 
courts,  it  would  immediately  be  adopted  as  a  precedent  by 
those  who  wish  to  evade  all  laws  against  usury. 

In  iny  opinion  the  decree  of  the  chancellor  should  be  af- 
firmed. 

ROOT,  senator,  delivered  a  written  opinion,  and  FOSTER,  sen- 
ator, an  oral  opinion,  in  favor  of  affirming  the  chancellor's  de- 
cree. 

PAIGE  and  PLATT,  senators,  delivered  oral  opinions  for  re- 
versal. 

On  the  question  being  put,  "  Shall  this  decree  be  reversed  7" 
the  members  of  the  court  voted  as  follows  : 

For  affirmance  :  Co  WEN,  J.,  and  Senators  BARTLIT,  CLARK, 
DIXON,  ELY,  FOSTER,  ROOT,  RUGER,  SCOTT,  VARJAN  and  VAR- 
NEY — 11. 

For  reversal :  The  PRESIDENT,  and  Senators  EOCKEE,  DICK- 
INSON, FAULKNER,  FRANKLIN,  HOPKINS,  HUNT,  NICHOLAS, 
PAIGE,  PLATT,  RHOADES  and  WORKS — 12. 

Decree  reversed. (o) 


(a)  See  Suydam  v.  WettfaU,  (ante,  p.  211,)  Ketchum  v.  Barber,  (ante,  p.  224, 
«nd  Seymour  and  other*  v.  Strong,  (ante,  p.  255.) 


492  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  v.  Hertcll. 


BOGERT,  appellant^  vs.  HERTELL  and  others,  respondents. 

D.t  by  his  will,  gave  the  rents  and  profits  of  two-thirds  of  his  real  estate  to  his 
daughters  for  life,  the  fee  to  their  issue ;  and  the  fee  of  the  other  third  to  his 
grandsons,  to  take  at  twenty -one,  with  the  benefit  of  the  income  by  way  of  mainte- 
nance during  their  minority.  The  will  then  provided  as  follows :  "  For  the  more 
easy  and  equal  division  of  my  estate,  I  do  hereby  fully  authorize  and  empower 
my  executors  hereinafter  named,  whenever  they  shall  think  it  expedient,  to  sell 
and  dispose  of  all  or  any  part  of  my  real  estate  for  the  most  moneys  that  can  be 
gotten  for  the  same"  &c.  In  pursuance  of  this  authority,  the  two  acting  execu- 
tors sold  certain  lots  of  land,  parcel  of  D.'s  estate,  and  took  back  a  bond  and 
mortgage  in  their  joint  names  as  executors  for  a  portion  of  the  purchase  money. 
Afterwards,  and  prior  to  the  fund  being  wanted  for  distribution,  one  of  the  ex- 
ecutors sold  and  assigned  the  bond  and  mortgage  to  B.,  misapplied  the  proceeds 
and  failed.  Held,  that  though  the  other  executor  did  not  unite  in  or  assent  to 
the  assignment,  B.  acquired  a  valid  title  to  the  bond  and  mortgage,  he  having 
purchased  in  good  faith. 

Where  land  is  directed  by  a  will  to  be  sold  and  converted  into  money,  though  for 
a  particular  and  specified  purpose,  and  not  absolutely  or  "  out  and  out,"  the  es- 
tate is  regarded  in  equity,  to  the  extent  and  for  the  purpose  designated,  as  money, 
and  not  land.  Per  NELSON,  Ch.  J. 

If  the  purpose  for  which  the  conversion  was  directed  fail  altogether,  or  in  part,  the 
entire  estate  in  the  one  case,  and  the  part  in  the  other,  is  regarded  as  undisposed 
of  by  the  will,  and  so  goes  to  the  heir  at  law.     Per  NELSON,  Ch.  J. 
In  the  case  of  a  partial  failure,  however,  if  the  purposes  of  the  will  still  require  that 
the  conversion  should  take  place,  the  part  hi  respect  to  which  the  failure  has  oc- 
curred goes  to  the  heir  as  money,  and  not  as  land.     Per  NELSON,  Ch.  J. 
After  a  sale  and  conversion,  no  failure  of  the  purposes  of  the  trust  having  occurred, 
the  executors  take  the  entire  proceeds  as  a  part  of  the  personal  assets  of  the  es- 
tate.   Per  NELSON,  Ch.  J.  and  BOCKEE,  Senator. 

Various  cases  relating  to  the  doctrine  of  equitable  conversion,  cited  and  comment- 
ed on.  Per  NELSON,  Ch.  J. 

Where  a  will  contains  a  power  to  sell  land  for  the  purpose  of  distribution,  of  pay- 
ing debts  &c.,  without  naming  the  donee  of  the  power,  it  will  vest  in  the  execu- 
tor by  implication.  Per  NELSON,  Ch.  J. 

In  general,  «ie  of  two  or  more  executors  may  make  a  valid  sale  of  the  personal 
assets  of  the  estate,  without  the  others  uniting  in  the  act  of  transfer.  Per  NET. 
BO.\,  Ch.  J. 

This  rule  applies  as  well  to  notes  and  other  securities  given  to  executors  as  such, 
after  the  death  of  their  testator,  as  to  those  given  to  him  in  his  life  time,  pro- 
vided the  money,  when  recovered,  would  be  assets.  Per  NELSON,  Ch.  J.,  and 
BOCKEE,  Senator. 


ALBANY,  DECEMBER,  1842.  493 

Bogctt  v.  Hcrtcll. 

Tho  case  of  Smith  v.  Whiting,  (9  Matt.  Rep.  334,>  commented  on  and  over, 
ruled. 

Suits  at  law  may  be  maintained  by  executors  or  administrators  as  such,  on  prom* 
issory  notes  &c.  made  to  them  in  their  representative  capacity,  where  the  fund 
sought  to  be  recovered  will  be  assets :  and  counts  on  such  notes  may,  it  seemt, 
be  joined  with  counts  on  promises  to  the  testator  or  intestate.  Per  NELSOW, 
Ch.J. 


APPEAL  from  chancery,  where  the  respondents  were  com- 
plainants, and  the  appellant  and  others  were  defendants.  For 
the  leading  facts  of  the  case,  together  with  the  opinions  of  the 
chancellor  and  vice-chancellor,  see  9  Paige,  52  et  seq.,  and  3 
Edw.  Ch.  Rep.  20,  et  seq.  The  will  of  John  Dover  being  im- 
portant to  a  proper  understanding  of  the  principal  question,  a 
more  full  statement  of  it  than  that  contained  in  9  Paige,  is  here 
given.  After  making  certain  provisions  for  the  wife  of  Dover, 
which  were  declared  to  be  in  lieu  of  dower,  the  will  proceeded 
as  follows  :  "  Item. — I  give  and  bequeath  unto  my  daughter 
Anna,  (wife  of  Stephen  Stevens,)  during  the  term  of  her  natu- 
ral life,  the  rents,  issues  and  profits  of  one  equal  undivided  third 
part  of  all  the  rest,  residue  and  remainder  of  my  estate,  both  real 
and  personal,  to  be  paid  to  her  in  half-yearly  payments  &c.  ; 
and  after  the  decease  of  my  said  daughter,  I  do  give,  devise 
and  bequeath  the  said  one  equal  undivided  third  part  of  all  the 
said  rest,  residue  and  remainder  of  my  estate,  both  real  and 
personal  &c.,  unto  the  lawful  issue  of  my  said  daughter  Anna, 
their  heirs,  executors,  administrators  and  assigns  forever,  equal- 
ly to  be  divided  among  them,  share  and  share  alike.  Item. — 
I  do  give  and  bequeath  unto  my  daughter  Christianna  (wife  of 
John  Wyckoff )  during  the  term  of  her  natural  life,  the  rents, 
issues  and  profits  of  one  other  equal  undivided  third  part  of  all 
the  said  rest,  residue  and  remainder  of  my  estate,  both  real  and 
personal,  to  be  paid  to  her  in  half-yearly  payments  &c. ;  and 
after  her  decease,  I  do  give,  devise  and  bequeath  the  said  last 
mentioned  one  equal  undivided  third  part  of  all  the  said  rest, 
residue  and  remainder  of  my  estate, both  real  and  personal,  un- 
to the  lawful  issue  of  my  said  daughter  Christianna,  their  heirs, 


494  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  v.  Hertcll. 

executors,  administrators  and  assigns  forever,  equally  to  be  di- 
vided aflfcong  them,  share  and  share  alike.  Item. — I  do  give, 
devise  and  bequeath  unto  my  grandsons  William  Hertell  and 
John  D.  Hertell,  and  to  their  heirs,  executors,  administrators 
and  assigns  forever,  as  tenants  in  common,  the  remaining  one 
equal  undivided  third  part  of  all  the  rest,  residue  and  remainder 
of  my  estate,  both  real  and  personal,  equally  to  be  divided  be- 
tween them,  share  and  share  alike,  and  to  be  paid  to  them  as 
they  shall  respectively  attain  the  age  of  twenty-one  years,  the 
income  thereof  during  their  minorities  to  be  applied  by  my  ex- 
ecutors, at  their  discretion,  towards  the  support,  maintenance 
and  education  of  my  said  grandsons.  Item.  —  For  the  more  easy 
and  equal  division  of  my  estate,  I  do  hereby  fully  authorize  and 
empower  my  executors  hereinafter  named,  whenever  they  shall 
think  it  expedient,  to  sell  and  dispose  of  all  or  any  part  of  my 
real  estate,  for  the  most  moneys  that  can  be  gotten  for  the  same, 
either  at  private  or  public  sale,  and  in  due  form  of  law  to  sign, 
seal,  execute  and  deliver  good  arid  sufficient  deeds  of  conveyance 
for  the  same  to  the  purchaser  or  purchasers  thereof,  his,  her  or 
their  heirs  and  assigns  forever,  in  fee  simple.  Item. — It  is  my 
will  that  all  the  rest  of  my  personal  estate  shall  be  put  out  at 
interest  by  my  executors,  upon  sufficient  land  security,  and 
kept  at  interest  until  the  same  must  be  paid  as  above  directed  ; 
and  lastly,  I  do  nominate,"  &c. — concluding  with  the  usual 
clause  appointing  executors.  The  case  was  argued  here  by 

C.  Edwards,  for  the  appellant,  and 
S.  Stevens,  for  the  respondents. 

NELSON,  Ch.  J.  The  great  question  in  the  case  is,  whether 
the  assignment  of  the  bond  and  mortgage  by  Van  Beuren  to 
Bogert,  had  the  effect  to  transfer  the  legal  interest  therein,  or, 
in- other  words,  whether  one  of  the  executors  was  competent 
to  sell  and  transfer  this  item  of  the  assets  of  the  estate,  so  as 
to  give  a  complete  title  to  the  purchaser.  The  court  below 


ALBANY,  DECEMBER,  1842.  495 

Bogcrt  v.  Hertell. 

held,  that  notwithstanding  the  power  given  by  the  will  to  sell 
and  dispose  of  the  real  estate,  and  thus,  in  fact,  to  convert  the 
mass  into  money,  yet,  after  it  had  been  thus  converted,  and 
existed  in  the  hands  of  the  executors  in  the  state  and  condition 
of  personalty,  it  was  still  to  be  regarded  as  land,  subject  to  the 
rules  and  principles  governing  the  disposition  of  real  estate  ; 
and  that  the  executors,  as  such,  having  no  control  over  the 
lands,  (their  powers  being  limited  strictly  to  the  administra- 
tion of  the  personal  estate,)  the  sale  and  assignment  by  Van 
Beuren  were  wholly  inoperative  and  void.  The  court  below 
also  held,  that  even  admitting  the  bond  and  mortgage  to  be  a 
part  of  the  personal  assets  of  the  estate,  yet,  inasmuch  as  these 
instruments  were  made  to  Van  Beuren  and  WyckofF  in  their 
joint  names,  though  described  as  executors,  it  was  not  compe- 
tent for  one  of  them  to  sell  and  transfer  the  legal  title  to  the 
same. 

In  respect  to  the  first  ground,  I  think  the  fundamental  error 
lies  in  a  misapprehension  of  the  true  nature  and  character  of 
the  fund  in  the  hands  of  the  executors.  It  is  said  by  the  court 
below  to  be  an  established  rule  in  the  doctrine  of  equitable 
conversion  of  real  into  personal  estate,  that  where  the  devisor 
directs  the  conversion  for  a  particular  specified  purpose,  and 
not  absolutely  to  all  intents  and  purposes,  or  "  out  and  out"  as 
the  phrase  is,  courts  are  bound  still  to  regard  the  estate  as 
land  ;  and  that  no  part  of  the  mass  thus  converted  has  im- 
pressed upon  it  the  character  of  personalty.  Now  I  think  the 
authorities  demonstrate  that  where  the  devisor  has  directed  or 
authorized  the  conversion  of  his  real  estate,  even  for  a  particular 
special  purpose,  such  as  distribution,  courts  are  bound,  so  long  as 
the  purpose  and  object  exist  and  continue,  to  regard  it  as  of  that 
species  of  property  into  which  it  was  directed  to  be  converted  ; 
and,  to  the  extent  and  for  the  purpose  declared,  it  is  to  be  treat- 
ed as  money,  and  not  land.  This  will  be  found  to  be  the  uniform 
language  of  all  the  cases  on  the  subject.  If  the  purpose  and 
object  of  the  conversion  fail  altogether,  or  in  part,  then  the 
whole  estate,  in  the  one  case,  and  the  part,  in  the  other,  is  re- 


496  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  ».  Hertell. 

garded  as  an  estate  or  interest  undisposed  of  by  the  will  j  and 
as  the  devisor,  in  the  event  happening,  has  made  no  disposition 
of  the  estate,  it  takes  the  direction  given  to  it  by  law,  indepen- 
dently of  the  will,  and  goes  to  the  heir  at  law.  But  in  the 
latter  case,  where  there  is  only  a  partial  failure,  if  the  pur- 
poses of  the  will  still  require  a  sale  and  conversion,  the  heir 
takes  the  part  thus  undisposed  of,  as  money,  and  not  as  land, 
and,  on  his  death,  it  will  go  to  his  personal  representatives. 
This  would  seem  to  be  a  proper  legal  view  of  the  case,  con- 
struing the  provision  of  the  will  in  this  case  in  conformity  with 
the  established  rule  of  interpretation,  viz.  according  to  the 
plain  intent  of  the  testator.  The  whole  doctrine  of  equitable 
conversion  rests  upon  this  ground.  The  law  regards  the  prop- 
erty, for  all  the  purposes  of  the  will,  in  the  state  and  condi- 
tion of  real  or  personal,  exactly  according  to  the  character  im- 
pressed upon  it  by  the  manifestation  of  the  testator's  intent. 
And  if  we  apply  this  rule  to  the  provision  of  the  will  in  the 
case  before  us,  nothing  can  be  clearer  thai  that,  in  the  event 
of  the  election  of  the  executors,  which  has  been  made,  the  tes- 
tator intended  the  real  estate  should  be  sold  and  converted  into 
money,  and  distributed  as  such  among  the  beneficiaries. 

But  let  us  see  how  the  doctrine  stands  upon  authority.  The 
cases  are  numerous,  but  I  shall  refer  to  a  few  of  them  only. 
In  Yates  v.  Compton,  (2  P.  Wms.  308,)  the  testator  devised 
that  his  executor  should  sell  his  land,  and  purchase  with  the 
proceeds  an  annuity  of  100/.  for  the  life  of  Jane  Styles,  and 
should  allow  to  her  so  much  thereof  as  would  support  her  and 
her  children.  He  also  gave  30/.  to  each  of  the  children  to  be 
charged  upon  the  annuity.  Jane  Styles,  (the  intended  annui- 
tant,) died  soon  after  the  testator,  and  the  administrator  with 
the  will  annexed  (the  executor  having  renounced)  filed  a  bill 
to  compel  the  heir  to  join  in  a  sale  of  the  lands.  It  was  in- 
sisted on  the  part  of  the  heir,  that  as  the  power  of  sale  was 
only  given  to  the  executor  for  a  particular  purpose,  which  had 
failed,  the  land  ought  not  to  be  sold.  But  the  chancellor  held, 
that  the  intention  of  the  will  was  to  give  all  away  from  the 


ALBANY,  DECEMBER,  1842.  497 

BogCTt  v.  Hertell. 

heir,  and  to  turn  the  land  into  personal  estate  ;  and  that  this 
intention  must  be  taken  as  it  was  at  the  death  of  the  testator, 
not  to  be  altered  by  subsequent  events.  He  accordingly  de- 
creed the  lands  to  be  sold,  and  the  proceeds  to  be  paid  to  the 
administrator,  subject  to  the  payment  of  the  children's  legacies. 
There,  it  will  be  perceived,  one  of  the  particular  objects  for 
which  the  land  was  directed  to  be  sold  had  failed  ;  but  as 
others  existed,  viz.  the  legacies  to  the  children,  it  was  still 
necessary  that  the  conversion  should  take  place. 

In  Bartholomew  v.  Meredith,  (1  Fern.  276,)  where  the  tes- 
tator devised  his  land  to  be  sold  for  the  payment  of  portions  to 
his  younger  children,  one  of  whom  died  after  the  portion  be- 
came payable,  but  before  the  sale,  it  was  held  that  the  land 
should  be  sold,  and  that  the  share  of  the  deceased  child  in  the 
proceeds  of  the  land,  being  personal  estate,  went  to  the  ad- 
ministrator. There,  also,  one  of  the  purposes  of  the  conversion 
failed,  but  others  existed  requiring  that  the  intent  of  the  testa- 
tor to  change  the  estate  into  personalty  should  be  carried  out. 

In  Doughty  v.  Bull,  (2  P.  Wms.  320,)  the  testator  devised 
his  lands  to  trustees,  in  trust  to  apply  the  rents  and  profits 
thereof,  until  sale,  for  the  benefit  of  his  four  children,  and  in 
further  trust,  that  as  soon  as  the  trustees  should  deem  it  for 
the  benefit  of  the  children,  they  should  sell  the  land  and  divide 
the  proceeds  among  them  in  equal  shares — the  shares  of  the 
sons  to  be  paid  to  them  at  twenty-one,  and  those  of  the  daugh- 
ters at  twenty-one,  or  upon  their  marriage.  The  eldest  son 
attained  to  the  age  of  twenty-one  and  died  without  issue,  leav- 
ing a  wife  ;  and  the  question  arose  between  one  of  the  children, 
claiming  as  heir,  and  the  widow.  If  the  property  was  to  be 
"regarded  as  land,  the  share  went  to  the  heir ;  if  as  personal 
estate,  a  moiety  belonged  to  the  widow.  The  master  of  the 
rolls  decreed  that  the  lands  being  devised  to  be  sold  were 
thereby  rendered  personal  estate,  and  that  a  moiety  of  the  share 
belonged  to  the  widow  of  the  deceased  son,  the  same  as  if  the 
estate  had  already  been  converted  into  money.  This  decree 
was  affirmed  on  appeal  by  the  chancellor.  The  case,  it  will 

VOL.  IV.  63 


498  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  ».  Hertell. 

be  perceived,  is,  in  all  its  circumstances,  like  the  one  in  ques- 
tion. The  direction  was  to  sell  the  land  and  convert  it  into 
personal  estate  for  the  sole  purpose  of  division  among  the  chil- 
dren ;  and  no  doubt  was  entertained  that  it  partook  of  the 
character  of  personalty  even  before  the  sale.  The  discretion 
of  the  trustees  in  this  respect  was  regarded  as  a  question  of 
time,  and  the  intent  to  have  the  land  sold  as  absolute.  Hence 
it  was  held,  that  the  property  should  be  deemed  money  in  the 
hands  of  the  trustees  ;  and  this,  though  one  of  the  purposes  of 
the  conversion  had  failed  before  it  took  place.  If  it  be  said 
there  was  in  that  case  a  conversion  "  out  and  out"  for  all  pur- 
poses, then  it  follows  that  a  direction  to  sell  for  the  purposes 
of  a  division  is  to  be  regarded  as  one  of  that  character,  and 
that  the  estate  becomes  absolutely  changed  into  personal 
assets. 

The  same  doctrine  is  maintained  in  Mdberly  v.  Strode,  (3 
Vesey,  450,)  where  a  sale  was  directed  for  the  purpose  of  dis- 
tribution j  also  in  Wright  v.  Wright,  (16  Vesey,  188,)  and  in 
Fletcher  v.  Ashburner^  (1  Bro.  Chan.  Rep.  497.)  But  without 
going  over  the  cases,  for  they  are  numerous,  I  will  only  refer 
to  the  clear  and  satisfactory  exposition  of  the  principles  of 
equitable  conversion  by  Sir  John  Leach,  vice-chancellor,  in 
Smith  v.  Claxton,  (4  Mad.  484,)  decided  in  1819.  That  case 
was  twice  argued,  all  the  authorities  were  collected  and  fully 
examined,  and  the  principles  laid  down  cover  the  whole  ques- 
tion before  us.  The  will  directed,  first,  a  sale  of  certain  lands 
for  the  payment  of  debts  and  legacies,  the  surplus  to  be  paid  to 
the  wife  of  the  testator ;  and  secondly  and  thirdly,  a  sale  of  cer- 
tain other  distinct  parcels  of  land  for  the  purposes  of  division 
between  the  testator's  children  and  grandchildren,  depending 
upon  the  occurrence  of  certain  events.  The  vice-chancellor 
said  :  "  Where  a  devisor  directs  his  real  estate  to  be  sold,  and  the 
produce  to  be  applied  to  particular  purposes,  and  those  purpo- 
ses partially  fail,  the  heir  at  law  is  entitled  to  that  part  of  the 
produce  which  in  the  events  is  thus  undisposed  of.  The  heir 
at  law  is  entitled  to  it,  because  the  real  estate  was  land  at  the 


ALBANY,  DECEMBER,  1842.  499 

Bogert  t.  HertclL 

devisor's  death  ;  and  this  part  of  the  produce  is  an  interest  in 
that  land  not  effectually  devised,  and  which  therefore  descends 
to  the  heir."  He  further  observed  :  "Under  every  will,  when 
the  question  is,  whether,  the  devisee  or  the  heir  failing,  the 
devisee  takes  an  interest  in  land,  as  land  or  money,  the  true 
enquiry  is,  whether  the  devisor  has  expressed  a  purpose  that, 
in  the  events  which  have  happened,  the  land  shall  be  convert- 
ed into  money  1  Where  a  devisor  directs  his  land  to  be  sold, 
and  the  produce  divided  between  A.  and  B.,  the  obvious  pur- 
pose of  the  testator  is,  that  there  shall  be  a  sale  for  the  conve- 
nience of  division ;  and  A.  and  B.  take  their  several  interests 
as  money,  and  not  land.  So  if  A.  dies  in  the  life  time  of  the 
devisor,  and  the  heir  stands  in  his  place,  the  purpose  of  the  dev- 
isor, that  there  shall  be  a  sale  for  the  convenience  of  division, 
still  applies  to  the  case  ;  and  the  heir  will  take  the  share  of  A. 
as  A.  would  have  taken  it — viz.,  as  money,  and  not  land.  But 
in  the  case  put,  let  it  be  supposed  that  A.  and  B.  both  die  in 
the  life  time  of  the  devisor,  and  the  whole  interest  in  the  land 
descends  to  the  heir  ;  the  question  would  then  be,  whether  the 
devisor  can  be  considered  as  having  expressed  any  purpose  of 
sale  applicable  to  that  event,  so  as  to  give  the  interest  of  the 
heir  the  quality  of  money.  The  obvious  purpose  of  the  devi- 
sor being,  that  there  should  be  a  sale  for  the  convenience  of 
division  between  his  devisees,  that  purpose  could  have  no  ap- 
plication to  a  case  in  which  the  devisees  wholly  failed,  and  the 
heir  would  therefore  take  the  whole  interest  as  land." 

The  first  devise,  in  that  case,  had  wholly  failed  ;  and, 
agreeably  to  the  above  lucid  exposition  of  the  law,  the  heir 
took  the  estate  as  land.  In  respect  to  the  second  and  third 
devises,  one  of  the  two  devisees  between  whom  the  estates 
were  to  be  divided  had  died,  but  as  the  purposes  of  a  sale  for 
a  division  still  applied,  the  fund  was  held  to  be  personal  estate, 
and  the  heir  took  the  share  as  A.  would  have  taken  it,  viz.  as  mo- 
ney and  not  land  ;  and  he  being  dead,  it  consequently  passed  to 
his  personal  representative,  and  not  to  his  heir  who  had  claimed 
the  interest. 


500  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  v.  Hertell. 

Now,  I  apprehend,  upon  these  cases,  and  I  might  refer  to 
numerous  others,  for  they  all  hold  one  uniform  language  upon 
this  point,  it  may  be  considered  as  established  beyond  all  contro- 
versy, that  where  the  testator  directs  his  lands  to  be  sold  for 
the  purpose  of  division  among  his  children  and  grandchildren, 
so  long  as  this  purpose  of  the  sale  and  conversion  exists  and  is 
necessary  to  carry  out  the  intent  of  the  will,  so  long  the  quali- 
ty of  personalty  is  effectually  stamped  upon  the  estate  in  the 
hands  of  the  executors ;  and  courts  are  bound  to  consider  it 
as  subject  to  the  laws  of  that  species  of  property  into  which 
it  was  intended  to  be  converted. 

That  the  executors  take  the  estate  thus  converted,  in  the 
character  of  their  office,  is  also  fairly  deducible  from  another 
class  of  cases  kindred  to  those  to  which  I  have  already  referred. 
It  has  been  settled  law  since  the  Year  Books,  that  a  power 
given  in  a  will  to  sell  land  for  the  purpose  of  paying  debts  and 
legacies,  or  for  making  division  of  the  produce,  without  naming 
the  donee,  will  vest  in  the  executor  by  implication.  This  is 
deemed  to  be  fairly  inferable  from  the  fact  that  the  fund  is  to 
be  distributed  by  him,  no  contrary  intention  appearing  in  the 
will.  The  cases  on  this  subject  are  collected  by  Mr.  Sugden, 
in  his  valuable  treatise  on  powers,  and  sustain,  beyond  all  ques- 
tion, the  principle  stated.  (1  Sugd.  on  Powers,  134  to  138, 
ed.  1837.) 

In  the  case  of  Tylden  v.  Hyde,  (2  Sim.  fy  Stu.  238,)  the  tes- 
tator directed  his  real  and  personal  estate  to  be  converted  into 
money,  and  the  interest  thereof  to  be  divided  among  his  sisters  ; 
and  it  was  held  that  a  power  to  the  executors  to  sell  the  prop- 
erty was  implied.  The  vice-chancellor  stopped  the  argument, 
*and  observed  :  "  Where  there  is  a  general  direction  to  sell,  but 
it  is  not  stated  by  whom  the  sale  is  to  be  made,  there,  if  the 
produce  of  the  sale  is  to  be  applied  by  the  executors  in  the 
execution  of  theif  office,  a  power  to  sell  will  be  implied  to  the 
executors.  Here  the  produce  of  the  sale  is  to  be  confounded 
with  the  personal  property  which  must  necessarily  be  divided  by 


ALBANY,  DECEMBER,  1842. 


Bogert  t>.  HcrtelL 


the  executors  ;  and,  by  the  rule  which  I  have  stated,  a  power 
is  therefore  implied  to  the  executors." 

It  is  supposed,  however,  even  admitting  the  conclusion  to 
be  correct  that  the  produce  of  the  land  is  to  be  deemed  personal 
estate  in  the  hands  of  the  executors,  that  still  the  fund  does  not 
belong  to  the  personal  assets  of  the  estate,  nor  vest  in  the 
executors  as  such  ;  but  that  they  hold  in  the  character  of  trus- 
tees, in  trust  to  distribute  among  the  children.  This  I  admit  to 
be  true  to  a  limited  extent  and  under  particular  circumstan- 
ces that  I  shall  mention  j  but  the  doctrine  has  no  application  to 
the  present  case.  We  have  seen  that,  where  the  purposes  of  the 
conversion  fail  altogether  or  in  part,  the  whole  interest  in  the 
one  case,  and  the  particular  portion  of  it  in  the  other,  is  re- 
garded, in  the  events  happening,  as  an  interest  undisposed  of  by 
the  will  j  and  that  then,  the  object  of  impressing  upon  it  the 
character  of  personalty  having  failed,  it  partakes  of  the  nature  of 
that  species  of  property  to  which  it  before  belonged — i.  e.  land — 
and  goes  to  the  heir.  But  if,  notwithstanding  a  partial 
failure,  the  purposes  of  the  will  still  require  the  conversion, 
though  the  heir  takes  the  share,  failing  the  devisee,  he  takes  it 
as  money — that  being  the  state  in  which  it  is  directed  to  be 
converted — and  not  as  land.  Now,  so  far  as  regards  this  un- 
disposed of  interest,  that  goes  to  the  heir  and  is  not  to  be  dis- 
tributed according  to  the  purposes  for  which  it  was  directed  to 
be  converted,  that  is,  the  purposes  of  the  will.  It  is  not,  I  ad- 
mit, considered  strictly  as  belonging  to  the  personal  estate  of 
the  testator,  or  as  constituting  a  part  of  the  general  assets ; 
but  it  is  regarded,  by  this  total  or  partial  failure,  as  having  be- 
come separated  from  the  mass  of  the  personalty,  and  held  by 
the  executors  as  trustees  for  the  heir,  or  those  to  whom  it  may 
belong. 

So,  in  case  of  a  devise  to  the  executors  to  sell  the  real  estate 
to  pay  debts  and  legacies  or  both,  the  surplus  of  the  moneys 
beyond  what  is  sufficient  for  this  purpose,  constitutes  no  part 
of  the  general  assets,  but  results  to  the  heir,  as  partaking  of 
the  nature  of  the  estate  out  of  which  it  was  raised.  Why  ? 


502  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  v.  Hcrtcll. 

The  obvious  answer  is,  because  it  was  not  the  design  of  the 
testator  to  stamp  the  character  of  personalty  upon  the  estate, 
beyond  what  was  sufficient  to  pay  debts  and  legacies.  But 
within  that  limit  the  intent  is  clear,  and  the  quality  and  char- 
acter of  the  estate  intended,  complete  and  absolute.  This  idea 
will  be  more  fully  illustrated  by  a  reference  to  the  manner  of 
distributing  the  produce  of  real  estate  directed  to  be  sold  for 
the  payment  of  debts  and  legacies.  For  a  long  time  the  fund 
was  considered  legal  assets  in  the  hands  of  the  executors,  and 
distributed,  in  the  ecclesiastical  courts,  in  the  ordinary  course 
of  administration.  This  was  the  doctrine  that  generally  pre- 
vailed until  the  case  of  Silk  \.  Prime,  decided  by  Lord  Cam- 
den  in  1768.  (1  Bro.  Ch.  Rep.  138,  in  note.)  There,  in 
analogy  to  the  case  of  a  devise  of  lands  to  trustees,  not  execu- 
tors, to  be  sold  for  the  payment  of  debts  and  legacies,  where 
the  distribution  was  necessarily  made  under  the  jurisdiction  of 
a  court  of  equity,  and  by  that  court  always  held  to  be  equita- 
ble assets,  distributable  equally  among  all  the  creditors,  on  the 
principle  that  "  all  debts  being,  in  a  conscientious  regard,  equal, 
and  equality  the  highest  equity,"  the  court  seized  upon  the 
idea  that  when  the  estate  was  devised  even  to  executors,  or  a 
power  given  to  them  in  trust  to  sell  and  pay  debts,  they  were 
in  some  sort  to  be  regarded  as  holding  the  fund  in  trust,  which 
might  properly  subject  it  to  that  jurisdiction  •  by  which  means 
the  court  was  enabled  to  apply  a  new  and  more  equitable  rule 
in  the  distribution  of  the  fund.  Since  then,  the  produce  of  the 
land  has  been  considered  equitable  assets,  to  be  distributed 
equally  among  all  the  creditors.  (Toller,  413  to  415,  ed.  of 
1815 ;  Ram  on  Assets,  chap.  26,  and  the  cases  there  cited.) 
But  this  did  not  change  the  nature  of  the  fund,  nor  the  execu- 
tor's power  of  disposition  over  it.  It  was  still  personal  assets 
vested  in  and  administered  by  him  among  the  several  creditors 
and  legatees.  The  effect  of  the  decision  was  only  to  apply  a 
new  rule  in  the  course  of  distribution,  and  turn  what  was  be- 
fore regarded  as  legal,  into  equitable  assets,  for  the  purpose  of 
a  more  just  and  equitable  distribution  by  the  executor. 


ALBANY,  DECEMBER,  1842.  503 

Bogert  *.  Hertell. 

I  have  no  doubt,  therefore,  that  the  fund  in  this  case  is  to  be 
regarded,  to  all  intents  and  purposes,  personal  assets  of  the  es- 
tate in  the  hands  of  the  executors  j  that  their  power  over  it  is 
as  full  and  perfect  as  in  the  case  of  the  personal  estate  of  the 
testator  with  which  it  is  blended  j  and  that  the  whole,  in  case 
of  a  sale  in  pursuance  of  the  power  given  to  them  in  the  will, 
is  to  be  distributed  as  money,  and  no  part  as  land,  or  as  par- 
taking of  the  nature  and  character  of  real  estate. 

The  next  question  is,  whether  it  was  competent  for  one  of 
the  executors  to  assign  and  transfer  the  legal  interest  in  the 
bond  and  mortgage  to  Bogert,  the  appellant.  And  this  turns 
upon  the  question,  whether  they  held  the  bond  and  mortgage 
in  the  character  of  executors,  or  in  their  own  personal  right.  We 
have  seen  that  both  instruments  are,  in  terms,  made  to  them  iu 
their  representative  capacity  j  and  it  is  admitted  to  be  a  general 
rule,  that  one  of  two  or  more  executors  possesses  the  power  of  sel- 
ling and  disposing  of  the  personal  assets  of  the  estate  as  fully  as 
if  all  were  to  join  in  the  act  of  transfer.  It  would  therefore  seem 
to  follow  naturally  enough,  that  if  Van  Beuren  and  Wyckoff 
are  to  be  regarded  as  invested  with  the  interest  in  the  bond 
and  mortgage  in  their  character  as  executors,  as  part  of  the  per- 
sonal assets  of  the  estate,  that  the  bona  fide  transfer  by  one, 
for  full  consideration,  would  pass  that  interest  to  the  pur- 
chaser. 

It  appears  to  have  been  once  understood  that  an  executpr 
could  not,  by  possibility,  acquire  an  interest  in  his  representa- 
tive character  in  a  promise  to,  or  undertaking  with  him,  in  that 
capacity,  but  that  he  must,  legally  and  of  necessity,  be  vested 
alone,  by  operation  of  such  engagements,  in  his  own  personal 
right.  The  case  of  Betts,  ex*r  #c.  v.  Mitchell,  (10  Mod. 
316,^  decided  in  the  K.  B.,  1  Geo.  1,  was  to  this  effect.  The 
plaintiff  brought  an  action  upon  a  promissory  note  made  to  him 
as  executor,  and,  in  counting  upon  it,  the  promise  was  laid  as 
made  to  him  in  that  character.  There  were  other  counts  on 
promises  to  the  testator.  It  was  determined  that  the  plaintiff 
could  not  recover,  on  the  ground  that  he  must  be  regarded  as 


504  CASES  IN  THE  COURT  OF  ERRORS. 


Bogert  ».  Hertell. 


holding  the  note  in  his  own  right,  and  not  as  executor ;  and 
that,  therefore,  there  was  a  misjoinder  of  counts.  It  was  there 
said  that,  on  the  death  of  the  executor,  the  note  would  go  to 
his  administrator,  and  not  to  the  administrator  de  bonis  non. 
We  will  see  hereafter  that  this  idea  has  been  long  exploded. 
The  same  doctrine  was  held  in  the  case  of  a  bond  to  the  plain- 
tiffs as  executors,  in  Hosier  and  another  v.  Lord  Jlrundell,  (3 
Bos.  $  Pull.  7,)  decided  by  the  C.  B.  in  1802. (a) 

But  in  King  and  others  v.  TAom,  (1  T.  R.  487,)  decided  by  the 
K.  B.  in  1786,  where  a  bill  of  exchange  had  been  endorsed  to  the 
plaintiffs  as  executors,  and,  in  counting  upon  it,  the  promise  was 
laid  to  them  in  that  character,  it  was  held  that  they  were  enti- 
tled to  recover.  Ashurst,  J.  says:  "It  must  be  taken  for 
granted  that  the  endorser  was  indebted  to  the  testator,  and  to 
the  plaintiffs  as  executors,  and  so  he  might  indorse  to  the 
plaintiffs  as  such  executors.  Then  they  held  the  bill  as  execu- 
tors, and,  upon  the  acceptor's  refusing  to  pay  it,  they  may  de- 
clare upon  the  right  in  which  they  hold  it."  "  They  have  only 
declared  according  to  the  truth  of  the  case."  Buller,  J.  con- 
curred. 

The  same  doctrine  was  more  fully  examined  and  declared  in 
Cowdl  and  wife,  adm'xj  fyc.  v.  Watts  9  (6  East,  405.)  There 
the  plaintiffs  declared,  in  the  first  count,  in  right  of  the  wife  as 
administratrix,  on  promises  made  to  Cowell  and  his  wife  as  ad- 
ministratrix, for  goods  sold  and  delivered  by  them  in  their  rep- 
resentative character  to  the  defendant.  There  was  a  second 
similar  count  on  a  quantum  valebant.  and  a  third  upon  an  ac- 
count stated  with  the  wife  as  administratrix.  The  defendant 
moved  in  arrest,  after  verdict,  on  the  ground  of  misjoinder  of 
counts.  The  court  examined  all  the  cases,  which  they  admit- 
ted to  be  contradictory,  and  laid  down  the  broad  proposition, 
which  has  been  adhered  to  ever  since,  that  where  the  promises 
are  made  to  the  executor  as  such,  and  the  money  when  recov- 


(o)  See  Partridge  v.  Court,  (5  Price,  412,  7  id.  491,  S.  C.  on  error;)  alao 
Powley  v.  Newton,  (6  Taunt.  453.) 


ALBANY,  DECEMBER,  1842.  505 

Bogert  v.  Hcrtcll. 

ered  would  be  assets,  the  executor  may  declare  for  it  in  his 
representative  character.  The  court  referred  to  and  approved 
the  case  of  King  and  others  v.  Thorn,  and  repudiated  the  rea- 
sons assigned  in  the  cases  opposed  to  it.  No  doubt  was  enter- 
tained that  the  promise  to  the  plaintiffs  in  right  of  the  wife  as 
administratrix,  vested  them  in  interest  in  their  representative 
character. 

The  case  of  Catherwood  v.  Chabaud,  (1  Barn,  if  Cress.  150,) 
is  still  more  direct  to  the  purpose.  There,  a  bill  of  exchange 
had  been  endorsed  generally,  but  delivered  to  S.  C.  as  admin- 
istratrix of  J.  C.  for  a  debt  due  to  the  intestate.  S.  C.  died 
after  the  bill  became  due  and  before  it  was  paid ;  and  it  was 
held  that  the  administrator  de  bonis  non  of  J.  C.  might  declare 
upon  the  bill  as  such,  and  recover  the  amount  as  unadminister- 
ed  assets  of  the  estate.  Abbot,  Ch.  J.  observed  :  "  It  has  been 
decided  in  a  variety  of  modern  cases,  that  an  administrator  may 
sue  as  such  under  a  promise  made  to  him  in  his  representative 
character ;  and  that  principle  governs  my  opinion  upon  the 
present  case ,  for  where  the  cause  of  action  is  such  that  the  first 
administrator  may  sue  in  his  representative  character,  the  right 
of  action  devolves  upon  the  administrator  de  bonis  non  of  the 
intestate."  Bayley,  J.,  referring  to  the  cases  of  King  and  oth- 
ers v.  Thorn,  and  Cowell  and  wife,  adm?x,  v.  Watts,  said,  "  if 
the  administrator  dies  intestate,  without  having  sued  upon  such 
a  promise,  the  administrator  de  bonis  non  may  sustain  an  action 
upon  it ;  for  he  succeeds  to  all  the  legal  rights  which  belonged  to 
the  administrator  in  his  representative  capacity.  Here  S.  C., 
the  administratrix  of  J.  C.,  might  have  sued  as  such  upon  the  bill 
in  question.  This  action  was  therefore  properly  brought  by 
the  administrator  de  bo?iis  non."  The  decision  in  this  case  di- 
recdy  overrules  the  principal  ground  relied  on  in  Bell  v.  Mitch- 
ell and  Hosier  and  another  v.  Lord  Jlrundell,  for  refusing  to 
allow  the  executor  to  recover  in  his  representative  character, 
in  the  one  case  upon  an  endorsed  bill,  and,  in  the  other,  upon  a 
bond  made  to  himself  in  that  character.  The  same  principle 
was  strongly  asserted  in  the  recent  case  of  Jlspinall  v.  Wake, 

VOL.  IV.  64 


506  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  v.  Hertell. 


(10  Ding.  51,)  where  it  was  held,  that  the  executors  might  sue, 
as  such,  for  the  price  of  goods  of  the  testator  sold  by  them,  af- 
ter his  decease,  to  the  defendant  in  the  course  of  dealing  with 
him  in  their  character  as  executors.  Tindal,  Ch.  J.  referred 
to  the  case  of  King  and  others  v.  Thorn,  and  observed  that,  if 
bills  had  been  given  for  the  goods  to  the  plaintiffs  as  executors 
they  might  have  sued  upon  them  in  that  character  j  and  that  it 
would  be  capricious  to  say  they  might  not  also  sue  as  ex- 
ecutors for  the  original  consideration  of  the  bills. 

In  Clark  v.  Hougham,  (2  Barn,  fy  Cress.  149,)  the  plaintiff 
was  allowed  to  recover,  in  her  representative  character,  money 
which  she  had  paid,  as  such,  through  mistake,  to  the  defendant. 

Now,  the  principle  deducible  from  all  these  cases,  I  appre- 
hend, conclusively  disposes  of  the  present  question.  Why  was 
the  executor  or  administrator  allowed  to  maintain  the  suit  in 
nis  representative  character,  where  the  promise  or  contract  was 
made  to  and  with  himself  as  executor  1  Confessedly  for  the 
reason  that  he  was  vested,  in  interest,  in  the  subject  matter  of 
the  promise  or  contract  in  his  representative  character  and  ca- 
pacity. In  the  two  cases  of  suits  on  bills  of  exchange,  the 
plaintiff  was  regarded  as  holding  the  securities  (as  executor,  in 
the  one  case,  and  as  administratrix  in  the  other,)  as  belonging 
to  the  assets  of  the  estate  j  and  it  was  held  that  he  could  deal 
with  the  paper  accordingly.  So  completely  was  the  latter 
deemed  to  be  vested  in  her,  in  her  representative  character, 
that  the  bill  passed  with  the  remaining  unadministered  assets: 
to  the  administrator  de  bonis  non,  by  the  mere  operation  oi 
law.  And  being  thus  vested  in  interest,  it  necessarily  follows 
that  the  power  of  control  and  disposition  over  thi  item  of  the 
assets  is  as  complete  and  absolute  as  in  respect  to  any  other 
belonging  to  the  estate. 

The  case  of  Smith  v.  Whiting,  (9  Mass.  R.  334,)  referred 
to  by  the  chancellor,  is  an  authority  against  this  conclusion 
But  the  decision  in  that  case  was  obviously  put  upon  the  cases 
of  Bttt*  v.  Mitchell,  and  Hosier  and  another  \.  LordArundell, 
the  principle  of  which,  we  have  seen,  has  been  long  overruled. 


ALBANY,  DECEMBER,  1842.  507 

Bogcrt  v.  HcrtclL 

It  was  held  in  Smith  v.  Whiting^  that  one  of  the  payees  could 
not  transfer  the  interest  in  the  note  by  endorsement,  because 
the  executors  were  regarded  as  holding  the  security  in  their 
individual  capacities.  The  court  say  :  "  The  promisees,  not 
oeing  copartners,  had  each  but  a  moiety.  One  therefore  could 
not  assign  the  whole."  But  if  both  had  been  considered  as 
holding  the  note  in  their  representative  character,  then,  each 
representing  the  testator,  the  act  of  one  would  have  been  as  ef 
fectual  to  pass  the  interest  in  the  note  as  the  act  of  all.  ( Toller , 
37,  360,  cd.  of  1815,  and  the  cases  there  cited.} 

Assuming  that  Van  Beuren,  the  executor,  was  competent  to 
sell  and  assign  the  bond  and  mortgage,  then  there  cannot  be  a 
doubt  that  Bogert  acquired  a  complete  title  to  the  money  due 
thereon  ;  for  it  is  admitted  he  purchased  in  good  faith  and  for 
full  value  advanced  at  the  time.  There  is  no  pretence  for  the 
charge  of  collusion  with  the  executor,  or  of  knowledge  on  the  part 
of  Bogert  that  the  executor  intended  to  misapply  the  assets,  or 
of  fraud  of  any  description.  He  paid  the  full  face  of  the  bond 
m  cash,  on  a  purchase  in  the  usual  way ;  and,  upon  all  the  cases, 
assuming  that  one  of  the  executors  alone  had  power  to  assign 
and  transfer  the  interest  in  the  securities,  Bogert  has  established 
as  perfect  a  right  to  the  money  thereby  secured,  as  if  Van  Beuren 
had  been  owner  in  his  own  right.  (M'Leod  \.  Drummond,  17 
Ves.  153  j  Field  v.  Schie/elin,  7  John.  Ch.  Rep.  150 ;  Colt  v. 
Lasnier,  9  Coioen,  320.) 

I  am  of  opinion,  therefore,  thai  the  decree  below  ought  to  be 
reversed,  and  shall  vote  accordingly.  ' 

BOCKEE,  Senator.  By  the  will  of  John  Dover  deceased  his 
executors  were  authorized  to  sell  all  or  any  part  of  his  real  es- 
tate at  their  discretion.  This  power  was  granted  to  them  pro- 
fessedly "  for  the  more  easy  and  equal  division  of  his  estate." 
So  far  as  related  to  the  sale  of  the  real  estate,  the  executors 
doubtless  acted  in  the  capacity  of  trustees,  and  it  was  necessary 
for  all  to  join  in  the  conveyance  in  order  to  give  a  good  title. 
The  power,  however,  having  been  executed,  and  the  estate,  iu 


508  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  ».  Hertell. 

pursuance  of  the  directions  of  the  will,  converted  into  per- 
sonalty, a  different  question  arises.  Van  Beuren  and  WyckofF 
are  clothed  by  the  testator  with  the  double  character  of  execu- 
tors and  trustees.  They  act  as  executors  in  relation  to  person- 
al assets,  and  as  trustees  in  regard  to  real  estate.  But  the  spe- 
cial directions  of  the  will  are,  to  convert  the  whole  real  estate 
into  personal.  When  so  converted,  is  it  to  be  considered  in 
the  hands  of  Van  Beuren  and  Wyckoff  as  executors,  or  as  trus- 
tees 1  No  further  act  was  to  be  done  by  them  but  to  divide  the 
proceeds  among  the  children  of  John  Dover,  according  to  the 
directions  of  the  will.  This  act  belongs  to  the  character  and 
appropriate  duty  of  executors.  After  conversion,  the  estate 
became  an  aggregate  whole  in  the  form  of  personal  property — 
the  testator  having  made  no  distinction  between  the  avails  of 
his  real  estate  and  his  personal  property.  The  whole  consti- 
tuted one  mass,  to  be  divided  in  the  same  way  by  his  execu- 
tors. Is  not  the  fund  raised  by  the  sale  of  the  real  estate  dis- 
tributable by  Van  Beuren  and  Wyckoif  in  their  character  of 
executors,  as  much  so  as  any  personal  property  which  belong- 
ed to  the  testator  1  Does  not  the  will  in  this  case  authorize 
and  direct  a  conversion  of  the  entire  real  estate  into  money  to 
be  paid  to  the  children  and  grandchildren  of  the  testator  1  If 
so,  I  think  it  fairly  comes  within  the  principle  stated  by  Lord 
Elleaborough  in  the  case  of  Denne  v.  Judge,  (11  East,  288,) 
in  which  he  says,  that  if  the  same  persons  are  both  trustees 
and  executors,  and  a  conversion  out  and  out  of  the  entire  es- 
tate into  money  is  directed,  the  fund  would  be  assets  in  their 
hands  as  executors.  It  comes  also  within  the  rule  admitted  by 
the  vice-chancellor,  (3  Edw.  Ch.  Rep.  27,)  that  where  there  is 
a  distribution  in  the  character  of  executors,  the  fund,  being  as- 
sets, would  be  taken  by  them  in  that  capacity,  and  not  as  trus- 
tees. The  principle  laid  down  by  the  vice-chancellor,  (Id. 
p.  24,)  is,  that  where  land  is  devised  to  executors  to  be  sold 
for  the  payment  of  debts,  or  where  executors  are  empowered 
by  will  to  sell  lands  for  that  purpose,  without  any  devise  to 
them,  or  where  they  proceed  to  do  so  under  the  authority  of 


ALBANY,  DECEMBER,  1842.  509 

~^-»-,*— .  ..         Bogert  v.  Hcrtcll. 

the  statute  by  virtue  of  a  surrogate's  order,  without  any  au- 
thority from  the  will  itself,  the  surplus  money  arising  from  the 
sale,  after  satisfying  the  debts,  retains  the  character  and  attri- 
butes of  land,  and  still  belongs  to  the  heir  or  devisee.  All 
this  is  very  true.  The  surplus  money  is  the  residuum  of  the* 
real  estate  after  a  sufficiency  has  been  sold  for  the  payment  of 
debts,  and  should  go  where  the  real  estate  would  itself  have 
gone.  There  is  good  reason  in  all  such  cases  that  the  surplus 
money  should  bear  and  retain  the  character  and  impress  of 
land,  and  not  be  accounted  for  by  the  executors  as  personal  es- 
tate ;  because,  in  strictness,  no  more  land  ought  to  be  sold 
than  is  sufficient  to  satisfy  debts,  and  the  excess  ought  to  re- 
main specifically  as  real  estate.  The  principle  of  the  cases  on 
this  subject  have  no  application  to  the  one  now  before  the 
court.  Very  different,  I  apprehend,  is  the  present  case,  where 
the  entire  real  estate  is  to  be  converted  into  money,  which, 
with  the  personal  estate,  is  to  constitute  the  fund  for  distribu- 
tion by  the  executors.  Such  must  have  been  the  intention  of 
the  testator,  and  such  must  have  been  the  view  entertained  by 
the  respondents  themselves  when  they  filed  their  bill  against 
the  executors  to  compel  them  to  account.  It  was  a  late  dis- 
covery that  Mr.  Bogert  was  to  be  brought  in  to  answer  for  the 
misapplication  of  funds  by  the  acting  executor.  It  must  be 
admitted  that  Bogert  has  acted  with  the  most  perfect  good 
faith.  He  dealt  with  Van  Beuren  as  the  only  resident  acting 
executor,  who  was  in  good  credit  at  the  time,  under  a  repre- 
sentation that  the  money  was  wanted  for  the  purposes  of  the 
estate.  He  had  no  reason  to  doubt  this  representation,  or  to 
entertain  any  suspicion  that  the  money  would  be  misapplied. 
Under  such  circumstances,  it  would  be  a  very  great  hardship 
to  take  from  Mr.  Bogert  some  fifteen  thousand  dollars,  proba- 
bly the  earnings  of  a  life  of  industry,  by  means  of  any  of  those 
sharp  "  quillets"  of  the  law  against  which  the  most  astute  and 
experienced  lawyers  would  be  unable  to  guard.  If  any  one  must 
suffer  from  the  default  of  Van  Beuren,  and  from  the  misplaced 
confidence  which  the  testator  reposed  in  him,  it  is  more  reason- 


5JQ  CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  v.  Hertell. 

able  that  it  should  be  the  complainants,  than  that  the  loss 
should  be  made  to  fall  upon  Mr.  Bogert. 

I  do  not  perceive  that  there  is  any  good  reason  for  the 
distinction,  as  regards  the  power  of  executors,  between  ob- 
ligations given  to  the  testator,  and  those  given  to  execu- 
tors as  such,  where  the  fund  is  really  and  truly  assets  in 
their  hands.  Chancellor  Kent,  in  the  case  of  Sutherland  v. 
Brush,  (7  John.  Ch.  Rep.  17,)  repudiated  such  a  distinction, 
and,  in  this  particular,  his  decision  has  not  been  overruled,  nor 
is  it  inconsistent  with  the  case  of  Coddington  v.  Bay,  (5  id. 
54.)  Chancellor  Kent's  decision  may  have  been  erroneous  and 
inconsistent  with  the  principle  of  Coddington  v.  Bay,  upon  the 
ground  that  Brush  was  not  a  bonajide  purchaser.  It  does  not 
follow,  however,  that  he  was  in  error  in  deciding  that  one  of 
several  executors  could  transfer  to  a  bonajide  purchaser  a  secu- 
rity given  to  them  jointly  as  executors.  The  error,  if  any  was 
committed  by  Chancellor  Kent,  was  on  a  point  having  no  relation 
to  the  question  in  the  present  case.  The  maxim,  "falsus  in  uno 
falsus  in  omnibus"  sometimes  applied  to  witnesses,  would  be 
•very  ungracious  in  its  application  to  the  decisions  of  judicial 
tribunals. 

I  am  of  opinion  that  Van  Beuren  and  Wyckoff  held  the  bond 
and  mortgage  in  question  as  executors ;  that  one  of  them  had 
the  same  power  to  transfer  these  securities  to  a  bonajide  pur- 
chaser as  if  they  had  been  given  to  the  testator  ;  that  Mr.  Bogert 
was  such  purchaser  for  a  full  and  valuable  consideration  ;  that 
his  conduct  was  honest,  guarded  and  cautious ;  that  he  is  not 
chargeable  with  notice  of  any  facts  which  could  implicate  him 
as  having  colluded  with  Van  Beuren  ;  and  that  the  assign- 
ment from  Van  Beuren  gave  him  a  good  title  to  the  bond  and 
mortgage.  But  if  this  were  not  so,  I  am  further  of  the  opin- 
ion that,  under  all  the  circumstances  of  this  case,  the  equity 
is  so  strong  in  favor  of  Bogert  that  it  ought  to  be  decreed  that 
Wyckoff,  as  executor,  should  join  in  the  assignment,  in  order 
to  perfect  Bogert's  title.  The  decree  of  the  chancellor  ought 
therefore  to  be  reversed. 


ALBANY,  DECEMBER,  1842.  51 1 

t 

Bogcrt  v.  Hertell. 

FRANKLIN,  Senator.  The  principal  question  in  this  case  is, 
whether  by  the  assignment  executed  to  James  Bogert  by 
Thomas  Van  Beuren,  one  of  the  executors  of  John  Dover  de- 
ceased, the  former  acquired  a  legal  title  to  the  bond  and  mort- 
gage in  question,  and  can  receive  the  moneys  secured  thereby 
to  his  own  use  and  benefit.  John  Dover,  by  his  will,  dated  the 
12th  day  of  October,  1820,  after  providing  for  the  payment  of 
his  debts  and  making  a  provision  for  his  wife  in  lieu  of  dower, 
gave  to  each  of  his  daughters,  Anna,  (wife  of  Stephen  Stevens) 
and  Lucretia,  (wife  of  John  Wyckoff,)  during  their  natural 
lives,  the  rents,  issues  and  profits  of  one  equal  undivided  third 
part  of  all  the  rest,  residue  and  remainder  of  his  estate,  both  real 
and  personal,  for  their  own  use,  to  be  paid  to  them  in  half 
yearly  payments.  He  also  gave  to  his  grandsons  William 
Hertell  and  John  D.  Hertell,  and  to  their  heirs,  executors,  ad- 
ministrators and  assigns  forever,  as  tenants  in  common,  the  re- 
maining one  equal  undivided  third  part  of  his  estate,  both  real 
and  personal,  to  be  divided  equally  between  them,  and  to  be 
paid  to  them  as  they  should  respectively  attain  the  age  of  twen- 
ty-one years  ;  the  income  thereof  during  their  minorities  to  be 
applied  by  his  executors,  at  their  discretion,  towards  the  sup- 
port, maintenance  and  education  of  said  grandsons.  Then,  for 
the  more  easy  and  equal  division  of  the  estate,  his  executors  were 
fully  empowered,  whenever  they  should  think  it  expedient,  to 
sell  all  or  any  part  of  his  real  estate  for  the  most  money  that  could 
Le  had  for  the  same,  and  to  execute  good  and  sufficient  deeds  of 
conveyance  for  the  same  in  fee  simple.  The  will  further  directed, 
that  all  the  rest  of  the  testator's  personal  estate  should  be  put  out 
at  interest  by  his  executors  upon  sufficient  land  security,  and  kept 
at  interest  until  the  same  must  be  paid,  as  therein  provided.  The 
testator  died  on  or  about  the  eighth  day  of  September,  1822, 
and  Thomas  Van  Beuren  and  Peter  Wyckoff  proved  the  will 
and  took  upon  themselves  the  burthen  of  its  execution.'  Anna, 
one  of  the  children  named  in  the  will,  has  since  died,  leaving 
her  husband  and  seven  children,  some  of  whom  are  infants  un- 
der the  age  of  twenty-one  years,  her  surviving.  The  testator 


512  CASES  IN  THE  COURT  OF  ERRORS. 


Bogert  v.  Hertell. 


died  seised,  among  other  real  estate,  of  two  houses  and  lots  of 
ground  situated  in  the  city  of  New-York,  and  known  as  num- 
bers 162  and  164  Broadway,  which,  on  the  26th  day  of  Febru- 
ary, 1825,  were  sold  to  John  B.  Yates,  by  the  two  acting  exec- 
utors, in  virtue  of  the  power  contained  in  the  will,  for  the 
sum  of  $22,500,  of  which  sum  $10,500  was  received  in  cash 
and  the  residue  secured  by  the  bond  and  mortgage  of  Yates, 
bearing  date  the  said  26th  day  of  February,  1825.  The  bond 
and  mortgage  were  executed  to  Van  Beuren  and  Wyckoff,  "  ex- 
ecutors of  the  last  will  and  testament  of  John  Dover,  deceased," 
and  were  conditioned  for  the  payment  of  $12,000  with  interest, 
on.  or  before  the  expiration  of  five  years  from  the  date  thereof. 
On  the  23d  day  of  March,  1827,  Van  Beuren  sold  the  bond 
and  mortgage  to  Bogert,  for  $12,043,  and  executed  to  him  an 
assignment  of  the  same,  in  which  he  was  described  as  "  Thomas 
Van  Beuren  of  the  city  of  New-York,  physician,  and  one  of  the 
executors  of  John  Dover,  deceased."  The  moneys  thus  received 
were  misapplied  by  Van  Beuren,  who  afterwards  became  in- 
solvent. 

Here  then  is  presented  the  question,  which  of  two  innocent 
parties  is  to  bear  the  loss  occasioned  by  this  breach  of  trust 
committed  by  Van  Beuren,  viz.  the  devisees  of  the  estate,  or 
the  assignee  ;  and  in  order  to  arrive  at  a  correct  conclusion,  it 
is  necessary  to  examine  in  what  capacity  Van  Beuren  and 
WyckofF  hold  the  bond  and  mortgage. 

It  is  a  well  settled  principle  of  law,  that  the  avails  of  real 
estate  are  riot  assets  to  be  administered  by  executors  as  personal 
estate,  but  are  still  realty,  belonging  to  the  devisees  to  whom 
the  land  has  been  devised.  Consequently,  the  sale  in  this  case 
was  not  a  conversion  from  one  species  of  property  to  another  ; 
for  where  land  is  sold  for  the  payment  of  debts  under  authority 
given  in  the  will,  or  by  an  order  of  the  surrogate,  the  surplus,  after 
the  payment  of  the  debts,  still  retains  the  character  of  realty  and 
belongs  to  the  heir  or  devisee.  The  executor,  as  such,  can 
have  no  power  or  control  over  such  surplus,  but  holds  the  same 
in  his  character  of  trustee,  and  not  as  executor.  It  is  evident 


ALBANY,  DECEMBER,  1842.  513 

Bogert  v.  Hertcll. 

to  ray  mind,  from  the  terms  of  this  will,  that  the  testator  de- 
signed to  create  a  trust ;  because  he  directs  that  the  rents, 
issues  and  profits  of  one  equal  undivided  third  part  of  the  re- 
mainder of  his  estate,  both  real  and  personal,  shall  be  paid  to 
his  daughters  in  half  yearly  payments,  and  that  the  income  of 
one  other  equal  undivided  third  part  shall  be  paid  to  his  two 
grandsons  during  their  minorities,  and  be  applied  by  his  exec- 
utors at  discretion  towards  their  support,  maintenance  and  edu- 
cation j  and  in  the  residuary  clause  of  the  will  there  is  also  an 
express  trust  created.  If  he  had  designed  that  other  persons 
than  those  named  as  executors  should  have  executed  these 
trusts^  he  would  have  named  them  for  that  purpose ;  but  his 
not  having  done  so,  leaves  the  presumption  that  he  intended 
his  executors  should  act  as  such  trustees,  and  so  the  law  pre- 
sumes. 

It  has  been  urged  in  argument  by  the  counsel  for  the  appel- 
lant, that  as  the  bond  and  mortgage  purports  to  be  in  the  names 
of  Van  Beuren  and  Wyckoff  as  executors,  and  as  the  assign- 
ment purports  to  be  executed  by  the  former  as  one  of  the  exec- 
utors of  John  Dover  deceased,  that  therefore  the  appellant  was 
not  bound  to  look  beyond  the  description  contained  in  the  bond 
and  mortgage  and  the  assignment.  I  apprehend  that  this  can- 
not vest  the  title  in  them  as  executors,  if  they  are  not  so  in 
fact  under  the  legal  construction  of  the  will.  Suppose  they 
had  been  therein  described  as  two  of  the  children  and  heirs  at 
law  of  John  Dover  deceased  :  that  certainly  would  not  give 
them  authority  to  convey  as  such,  and  it  would  have  been  no 
excuse  for  a  purchaser  to  come  into  this  or  any  other  court 
and  offer  as  a  plea  in  bar  to  the  claim  of  the  real  owner,  that 
he  was  misled  by  such  description,  that  he  parted  with  his 
money  or  property  in  good  faith,  and  that  therefore  he  should 
hold  the  subject  of  his  purchase  against  the  person  legally  en- 
titled thereto.  The  words,  "  executors,"  &c.  must  be  con- 
sidered as  mere  words  of  description,  without  any  binding  force, 
unless  the  facts  legally  warrant  the  description  ;  and  it  was  the 
duty  of  the  appellant,  or  his  counsel,  which  is  the  same  thing, 

VOL.  IV.  66 


514       CASES  IN  THE  COURT  OF  ERRORS. 

Bogert  v.  Hertell. 


to  have  ascertained  in  what  capacity  they  acted,  and  not  to 
have  trusted  to  the  mere  addition  to  the  name  contained  in  the 
assignment. 

For  what  purpose  was  authority  given  to  the  executors  to 
sell  the  real  estate  ?  "  For  the  more  easy  and  equal  division  of 
my  estate,"  are  the  words  of  the  will ;  and  when  the  executors 
had  sold  it  for  that  purpose,  (and  they  could  have  sold  it  for 
no  other,)  the  proceeds  partook  of  the  character  of  real  estate, 
and  therefore  the  bond  and  mortgage,  being  the  proceeds  of 
real  estate,  were  held  by  them  as  trustees  for  the  benefit  of  the 
devisees,  for  the  purpose  of  making  a  more  easy  and  equal  di- 
vision of  the  estate. 

Having  thus  arrived  at  the  conclusion  that  Van  Beuren  and 
Wyckoff  were  acting  in  this  transaction  in  the  capacity  of 
trustees,  and  not  of  executors,  the  next  question  which  arises  is, 
whether  the  act  or  concurrence  of  all  the  trustees  who  take 
upon  themselves  the  execution  of  the  trust,  is  necessary  to  the 
due  execution  of  such  trust  or  power  j  or  whether  one  of  sev- 
eral trustees  has  authority  to  sell  or  otherwise  dispose  of  the 
property  held  in  trust.  In  the  case  of  Sinclair  v.  Jackson,  (8 
Cowen,  583,)  to  which  allusion  was  so  frequently  made  in  the 
course  of  the  argument,  Chancellor  Jones,  in  delivering  the 
opinion  of  this  court,  says  :  "  The  powers  of  the  trustees, 
whether  express  or  implied,  must  be  executed  strictly  ;  and  the 
principle  applies  equally  to  trusts  or  powers  coupled  with  an 
interest,  and  where  the  trust  or  power  will  survive,  as  to  mere 
naked  authority  ;"  and  therefore  a  lease  not  having  been  exe- 
cuted by  all  the  trustees  living,  was  held  to  be  absolutely  void. 
So  also  in  the  case  of  Green  v.  Miller,  (6  John.  R.  39,)  it  was 
held  that,  where  a  trust  or  authority  is  confided  to  several  per- 
sons, for  a  private  purpose,  the  concurrence  of  all  is  necessary 
to  its  due  execution.  This  doctrine  appears  to  be  recognized 
and  established  in  all  the  cases  to  which  my  attention  has  been 
called,  and  has  not  to  my  knowledge  ever  been  overruled,  but 
is  at  this  day  the  firm  and  settled  law  of  the  land. 

It  was  also  urged  by  the  counsel  for  the  appellant,  that,  if 


ALBANY^  DECEMBER,  1842.  515 

Bogert  v.  Herteil. 

the  hardship  of  the  case  be  looked  to,  this  court  should  lean  in 
favor  of  a  party  who  has  acted  in  good  faith,  and  paid  out  of 
his  own  hard  earnings  $12,000.  But  I  understand  the  rule  of 
law  to  be,  that  when  one  of  two  innocent  parties  must  suffer 
loss  by  the  fraud  or  wrong  of  a  third,  the  one  who  by  his  act 
has  enabled  the  fraud  or  wrong  to  be  committed,  shall  himself 
bear  the  loss.  In  this  case,  if  the  appellant  had  refused  to  ad- 
vance his  money  upon  the  assignment  of  the  bond  and  mort- 
gage by  Van  Beuren  alone,  and  had  insisted  upon  the  signature 
of  Wyckoff,  for  aught  that  appears  upon  the  pleadings  and 
proofs,  the  latter  would  have  refused  to  sanction  the  trans- 
fer, knowing,  as  he  did  or  as  he  was  bound  to  do,  that  the 
money  was  not  wanted  at  that  time  for  the  purposes  of  the 
estate  ;  and  in  the  event  of  his  complying  with  a  request  to 
join  in  the  assignment,  he  would  probably  have  been  held  lia- 
ble for  the  loss  which  afterwards  occurred,  as  it  would  have 
been  a  palpable  breach  of  trust  on  his  part  towards  those  whose 
interest  he  was  bound  to  protect ;  because,  by  the  express  terms 
of  the  will,  the  estate  was  to  have  been  kept  out  at  interest 
upon  real  security  until  the  same  was  to  be  paid  as  therein  di- 
rected. It  cannot  be  pretended  that  it  was  necessary  at  that 
time  to  convert  the  bond  and  mortgage  into  cash  ;  for  the  pro- 
ceeds were  again  loaned  out  upon  marine  policies  and  other 
personal  securities,  and  finally  lost  in  consequence  of  a  depar- 
ture from  the  specified  conditions  of  the  trusts.  Again,  the 
devisees  under  the  will  of  John  Dover,  the  respondents  in  this 
cause,  have  been  guilty  of  no  act  by  which  they  can  be  charged 
with  deceiving  the  appellant,  or  inducing  him  by  any  represen- 
tations of  theirs  to  invest  his  money  in  the  manner  in  which  he 
has  done.  It  was  not  in  their  power  to  raise  a  warning  voice 
in  order  to  prevent  him  from  so  doing ;  for  they  knew  nothing 
of  the  transaction  at  the  time,  and  were  never  consulted  in  re- 
lation to  it.  On  the  other  hand,  evidence  was  presented  to  the 
appellant  that  this  bond  and  mortgage  were  taken  by  Bogert 
and  Wyckoff  in  the  character  of  executors,  they  being  therein 
described  as  such,  and  that  it  was  for  part  of  the  consideration 


516  CASES  IN  THE  COURT  OF  ERRORS. 

The  Commercial  Bank  of  Buffalo  ».  The  Bank  of  the  State  of  New- York. 

money  on  the  sale  of  the  Broadway  property.  It  was  therefore 
the  appellant's  duty,  or  that  of  his  counsel  acting  for  him,  to  as- 
certain how  and  in  what  manner  or  character  the  bond  and  mort- 
gage were  held  by  the  executors,  and  he  n-ot  having  availed  him- 
self of  the  opportunity  to  do  so,  must  submit  to  the  consequences 
of  such  neglect.  The  devisees  have  the  right  and  are  entitled  to 
the  whole  trust  estate,  in  whose  hands  soever  the  same  may  be, 
and  the  appellant,  being  in  possession  of  part  of  this  estate  wrong- 
fully and  without  any  legal  title,  is  bound  to  give  up  the  bond 
and  mortgage.  I  am  therefore  of  the  opinion  that  the  decree 
of  the  chancellor  should  be  affirmed. 

RUGER,  senator,  delivered  a  written  opinion  in  favor  of  re- 
versing the  chancellor's  decree. 

On  the  question  being  put,  "  Shall  this  decree  be  reversed  ?'J 
all  the  members  of  the  court  who  heard  the  argument,  (eighteen 
in  number,)  except  FRANKLIN  and  PAIGE,  senators,  voted  in 
favor  of  reversal. 

Decree  reversed. 


THE  COMMERCIAL  BANK  OF  BUFFALO,  appellants,  vs.  THE  BANK 
OF  THE  STATE  OF  NEW- YORK  and  another,  respondents. 

In  general,  a  defendant  in  chancery  has  no  means  of  compelling  the  complainant 
to  produce  papers  to  be  used  as  primary  evidence  against  himself,  save  by  filing 
a  cross  bill  for  discovery.  Semble ;  per  COWEN,  J. 

After  a  paper,  however,  has  been  produced  and  used  as  evidence  before  an  exam: 
iner,  by  the  complainant,  if  he  subsequently  withdraw  it  and  refuse  to  let  tho 
defendant  or  his  witnesses  inspect  it,  the  court  will  compel  its  restoration  to  tho 
custody  of  the  examiner,  for  the  purposes  of  the  examination,  or,  motion ;  and 
this,  though  a  copy  of  it  only  was  marked  as  an  exhibit,  and  not  the  paper 
itself. 

Exhibits  before  an  examiner  are  subject  to  the  use  of  both  parties,  for  the  purpose 
of  examining  witnesses  in  respect  to  them. 

Tho  difference  between  the  English  practice  and  our  own,  in  this  particular,  stated 
and  considered.  Per  COWEN,  J. 


ALBANY,  DECEMBER,  1842.  517 

The  Commercial  Bank  of  Buffalo  r.  The  Bank  of  the  State  of  New- York. 

A  party,  by  the  act  of  producing  and  proving  a  paper  before  an  examiner,  thereby 
makes  it  an  exhibit,  whether  it  be  ao  marked  or  not ;  and  he  has  no  power, 
without  the  consent  of  his  adversary,  to  qualify  the  effect  of  the  act  so  as  to  pro- 
vent  the  paper  from  being  treated  as  an  exhibit.  Per  COWE.V,  J. 

If  an  examiner  omit,  through  mistake,  to  mark  a  paper  as  an  exhibit  which  has 
been  produced  and  proved  before  him,  the  mistake  may  be  corrected  by  motion 
Per  COWEX,  J. 

Whether  a  party  making  an  exhibit  and  proving  it  before  an  examiner,  is  bound 
to  produce  either  that,  or  the  deposition  by  which  it  was  proved,  lor  the  purposes 
of  the  hearing,  quere. 

At  law,  the  production  and  proof  of  a  paper  at  the  trial,  makes  it  evidence  for  both 
sides.  Per  COWEN,  J. 

So,  scmble,  of  a  paper  produced  and  proved  before  a  master  in  chancery  on  refer 
ence.  Per  COWEN,  J. 


APPEAL  from  an  order  of  the  vice-chancellor  of  the  first  cir- 
cuit. In  the  course  of  examining  witnesses  in  this  cause  be- 
fore Mr.  Cooper,  an  examiner,  at  Buffalo,  in  January,  1841, 
an  original  list  or  memorandum  belonging  to  the  complainants 
below — now  the  appellants — was  produced  and  used  by  them 
in  taking  the  testimony  of  S.  Daniels,  one  of  their  witnesses  ; 
and  a  copy  of  it  was  marked  by  the  examiner  as  exhibit  "  A." 
On  a  subsequent  examination  at  New- York,  in  March  follow- 
ing, the  original  list  was  again  produced  by  the  complainants, 
and  several  witnesses  interrogated  by  the  defendants  in  respect 
to  it  ;  but  upon  their  proposing  to  examine  one  Williamson, 
who  made  the  list,  and  expressing  a  desire  that  he  might  see 
it,  the  complainants'  counsel  refused,  and  withdrew  the  same. 
The  defendants  thereupon  moved  the  vice-chancellor,  aftet  due 
notice  to  the  other  party,  for  an  order  compelling  the  produc- 
tion of  the  original.  The  complainants'  counsel  who  attended 
the  examination  at  Buffalo,  stated,  in  an  affidavit  made  by  him, 
that  he  declared,  at  the  time  of  producing  the  paper,  he  did 
not  intend  to  make  the  original  an  exhibit  in  the  cause,  but  to 
retain  it  under  his  control  as  a  paper  belonging  to  his  clients  ; 
and  that,  therefore,  a  copy  only  was  marked  by  and  left  with 
the  examiner,  instead  of  the  original.  The  complainants'  coun- 
sel who  attended  the  examination  in  New- York,  stated,  in  an- 
other affidavit,  that  the  paper  was  produced  before  the  examiner 


518  CASES  IN  THE  COURT  OF  ERRORS. 

The  Commercial  Bank  of  Buffalo  ».  The  Bank  of  the  State  of  New-York. 

there,  out  of  mere  courtesy  to  the  defendants'  counsel,  and  not 
as  an  exhibit.  The  genuineness  of  the  paper  was  not  disputed, 
nor  was  its  materiality  denied  ;  but  the  complainants  insisted 
before  the  vice-chancellor  that  it  was  still  under  their  control, 
and  that  the  defendants  could  not  be  permitted  to  use  it  except 
as  matter  of  favor.  The  vice-chancellor  held  otherwise,  how- 
ever, and  made  an  order  that  the  complainants  produce  the 
original  upon  the  further  examination  ;  that  the  defendants  be 
permitted  to  show  the  same  to  their  witnesses,  and  examine  in 
regard  thereto,  &c.  From  that  order  the  complainants  appeal- 
ed directly  to  this  court,  the  chancellor  being  interested. 

L.  H.  Sandfordj  for  the  appellants. 
W.  C.  Noyes,  for  the  respondents. 

COWEN,  J.  Independently  of  the  production  and  use  of  this 
document  before  the  examiners,  it  may  be  conceded  that,  -to 
compel  its  production  as  primary  evidence,  a  cross  bill  must 
have  been  filed  for  the  purpose  of  discovery  ;  (Kelly  v.  Eck- 
fordj  5  Paige,  548,  and  the  cases  there  cited  ;)  and  that,  with- 
out such  a  proceeding,  the  defendants  would  be  confined  to  se- 
condary evidence  after  notice  to  produce  had  been  given. 
(Gresl.  Eq.  Ev.  195.) 

In  the  case  before  us,  however,  the  original  was  produced, 
the  primary  evidence  was  before  the  examiners,  and  witnesses 
were  actually  interrogated  and  their  answers  taken  down  upon 
the  point  of  its  verity.  Then,  upon  the  witness  who  made  the 
original  being  produced,  it  was  withdrawn  from  his  observa- 
tion. That  it  was  a  material  paper,  and  in  its  own  nature 
would  form  a  proper  exhibit  in  the  cause,  is  not  denied  ;  nor 
that  it  was  in  fact  used  before  the  examiners  as  evidence  by 
both  parties.  That  it  was  not  marked  as  an  exhibit  can  make 
no  difference,  if  it  should  have  been  so  marked.  The  omission, 
if  it  were  material,  must  be  set  down  to  the  mistake  of  the  offi- 


ALBANY,  DECEMBER,  1842.  519 


The  Commercial  Bank  of  Buffalo  r.  The  Bank  of  the  State  of  New. York. 

cer  ;  and,  like  similar  mistakes,  be  corrected  by  motion.  (Vid. 
Toml.  Diet.  "  Exhibit.") 

The  vice-chancellor  was  right,  therefore,  in  holding  that  the 
paper  had  become  an  exhibit  in  the  cause.  The  production  and 
proof  of  a  paper  before  an  examiner  makes  it  an  exhibit  in  fact, 
(Toml.  Diet.  "  Exhibit ;")  and  the  party  producing  it  has  no 
power  without  the  consent  of  his  adversary  (and  such  consent 
is  not  satisfactorily  shown  in  this  case)  to  qualify  the  effect  of 
the  production  and  proof.  Such  an  act  at  nisi  prius  would 
have  made  it  evidence  for  both  parties.  (Kelly  v.  The  Dutch 
Church  of  Schenectady,  2  Hill,  105.) 

In  Willis  v.  Dyson ,  (1  Stark.  Rep.  164,  166,)  Scarlett,  in 
opening  the  plaintiff's  case,  alluded  to  a  document  material  to 
the  defendant  as  evidence,  which  the  plaintiff  intended  to  over- 
come by  countervailing  evidence.  The  defendant's  counsel  in- 
sisted that  he  had  a  right  to  consider  even  this  as  amounting  to 
proof  of  the  document  by  the  plaintiff.  Lord  Ellenborough 
said,  that  was  claiming  too  much,  though,  if  the  counsel  had 
propounded  the  document  as  forming  part  of  the  plaintiff's  case, 
he  could  not  afterwards  have  been  allowed  to  retract.  (See 
also  Calvert  v.  Flower,  7  Carr.  <£  Payne,  386.) 

It  never  has  been  questioned  that  the  production  of  a  paper 
and  an  examination  of  witnesses  in  respect  to  it  before  a  jury, 
the  genuineness  of  the  paper  being  proved  or  admitted,  makes 
it  evidence  for  both  sides.  So,  I  should  think,  if  produced  and 
proved  before  a  master  on  reference  ;  (Gilbert  v.  Wetherell,  2 
Sim.  ^  Stu.  254 ;)  and  the  act  of  afterwards  withdrawing 
and  withholding  the  paper  might  be  punished  as  a  contempt. 

Upon  obvious  analogy,  an  exhibit  before  an  examiner  is  at 
least  subject  to  the  use  of  both  parties  for  the  purpose  of  ex- 
amining witnesses  in  respect  to  it,  whatever  may  be  the  rule  as 
to  its  inspection  or  production  at  the  hearing.  It  is  said  that 
counsel  must  examine  without  inspection  ;  and  several  cases 
are  cited  where,  though  the  party  has  made  an  exhibit  of  a  pa- 
per and  taken  depositions  concerning  it,  yet  the  court  has,  on 
motion,  declined  to  require  its  production  for  the  inspection  of 


520  CASES  IN  THE  COURT  OF  ERRORS. 

The  Commercial  Bank  of  Buffalo  ».  The  Bank  of  the  State  of  New- York. 

the  opposite  party.  (Davers  v.  Davers,  2  Str.  764 ;  2  P. 
Wms.  410,  S.  C.',  Wiley  v.  Pistor,  7  Ves.  409;  McMahon, 
M.  R.  in  Hare  v.  Collins,  1  Hogan,  193,  4.)  These  cases  re- 
fer to  the  complainant's  exhibits,  arid  the  rule  would  seem  to 
be  confined,  at  least  in  its  more  rigorous  application,  to  motions 
against  him.  (Fencott  v.  Clarke,  6  Sim.  8.)  The  motion  in  the 
court  below  was  made  against  the  complainant ;  and  the  cases 
cited  should  therefore  govern  us,  unless  the  reason  upon  which 
they  were  founded  is  done  away  by  the  change  in  our  form  of 
conducting  chancery  examinations.  The  reason,  so  far  as  it 
can  be  collected  from  the  English  cases,  is,  that  the  defendant 
has  no  right  to  see  the  strength  of  the  complainant's  cause  till 
the  hearing.  (2  P.  Wms.  410;  7  Ves.  411;  Gresl.  Eq.  Ev. 
129.)  Even  in  England,  it  is  not  denied  that  you  may  examine 
respecting  the  exhibit ;  but  you  are  bound  to  do  so  without 
inspection.  It  seems  to  me  that  the  whole  of  this  rests  upon 
the  course  of  the  court.  The  examination  is  conducted  by  the 
examiner  in  secret,  on  written  interrogatories ;  and  the  rule  is 
general  and  quite  inflexible  that  the  secrets  of  the  examiner's 
office  shall  not  be  disclosed  to  one  party  or  the  other,  until  after 
publication  shall  have  passed.  With  us  the  examination  is 
open  and  conducted  as  it  would  be  before  a  jury.  (2  R.  S. 
109,  §  89,  2d  ed.)  And  the  incidental  right  of  seeing  all  docu- 
ments produced  before  the  examiner  for  the  purpose  of  being 
referred  to  by  counsel  or  witnesses  at  any  subsequent  stage  of 
the  examination,  would  seem  to  follow  from  the  analogous 
right  which,  as  we  have  seen,  would  attend  the  production  be- 
fore a  jury. 

Whether  the  party  making  an  exhibit  and  proving  it  before 
the  examiner,  would  be  bound  to  produce  at  the  hearing  either 
that  or  the  depositions  by  which  it  was  proved,  is  another 
question.  We  are  referred  to  Hodson  v.  Warrington,  (3  P. 
Wms.  34,)  to  show  that  he  would  not.  (And  see  Gresl.  Eq.  Ev. 
129.)  It  may  be  considered  as  a  general  rule  that  the  party 
can  select  his  proofs  at  the  hearing  from  among  all  his  papers 
and  depositions  coming  up  from  the  examiner's  office  ;  and  that 


ALBANY,  DECEMBER,  1842.  521 

The  Commercial  Bank  of  Buffalo  r.  The  Bank  of  the  State  of  New-York. 

his  adversary  is  not  entitled  to  use  the  whole  evidence  rn  the 
cause  as  he  would  be  at  nisi  prius.  Examiners  and  commis- 
sioners are  but  ministerial  officers  to  aid  in  furnishing  proofs. 
They  do  not  determine  upon  them  like  a  judge  and  jury.  The 
office  of  the  latter  is  to  be  performed  by  the  chancellor.  But 
it  by  no  means  follows  that  in  the  framing  and  concoction  of 
evidence  for  the  use  of  the  chancellor,  evidence  which  may  be 
brought  to  bear  with  fatal  effect  against  a  party,  he  should  not 
be  allowed  the  same  means  as  before  a  jury  to  overcome  it  both 
by  inspection  and  cross-examination.  By  stopping  short  of 
this,  we  lose  one  great  purpose  of  the  statute  which  throws 
open  the  doors  of  the  examiner.  It  was  mainly  intended  to 
prevent  a  party  being  concluded  or  affected  by  the  old  method. 
This  was  complained  of  as  inquisitorial.  We  cannot  obviate 
the  objection  entirely  without  governing  examinations  in  chan- 
cery by  the  same  rules  which  prevail  at  nisi  prius. 

I  am,  therefore,  for  affirming  the  vice-chancellor's  order. 

BOCKEE,  Senator.  It  is  clear  to  my  mind,  beyond  controver- 
sy, that  the  original  paper  was  used  in  evidence,  and  was  sub- 
stantially an  exhibit  in  the  cause.  It  ought  therefore  to  be  in 
the  custody,  and  is  in  the  power  of  the  court.  The  appellants 
admit  they  have  possession  of  the  paper.  The  order  of  the 
vice-chancellor  directing  it  to  be  produced  and  to  remain  with 
the  examiner  for  the  respondents'  use  during  the  examination 
of  their  witnesses,  was  properly  granted,  and  ought  to  be  af- 
firmed. 

All  the  members  of  the  court  concurring  in  this  result,  the 
order  of  the  vice-chancellor  was  unanimously  AFFIRMED. 


VOL.  IV.  66 


522  CASES  IN  THE  COURT  OF  ERRORS. 

Jackson  v.  Griswold, 


JACKSON,  appellant,  vs.  GRISWOLD,  respondent. 

A  mere  surety  for  a  debt  will  not  be  bound  by  a  decree  or  judgment  pronounced 

in  a  suit  between  his  principal  and  the  creditor,  even  though  the  suit  was  con. 

ducted,- on  the  part  of  the  principal,  exclusively  by  the  surety  as  his  agent. 
Otherwise,  semble,  if  the  surety  voluntarily  came  in  and  litigated  as  such,  in  the 

name  of  his  principal,  with  the  assent  of  the  creditor. 
If,  in  a  suit  between  the  creditor  and  the  principal,  a  decree  or  judgment  be  pro- 

nounced  against  the  validity  of  the  debt,  this  will  operate  to  discharge  the  sure- 

ty,  and  consequently  may  be  used  as  evidence  in  his  favor.    Per  COWEN,  J. 
Several  instances  adverted  to  in  which  a  person,  though  not  named  as  a  party  in  a 

suit,  may  nevertheless  be  concluded  by  the  judgment  rendered  therein.    Per 

COWEN,  J. 
The  cases  of  Douglass  v.  Howland,  (24  Wend.  35,)  Willey  v.  Paulk,  (6  Conn.  R. 

74,)  and  De  Forest  v.  Strong,  (8  id.  513,)  commented  on  and  explained.   Per 

COWEN,  J. 

APPEAL  from  chancery,  where  Griswold  (the  respondent) 
was  complainant,  and  Jackson  (the  appellant)  and  Caroline 
Dunham,  were  defendants.  The  last  named  defendant  having 
failed  to  redeem  the  stock  in  the  Williamsburgh  Ferry  Com- 
pany pursuant  to  the  chancellor's  decree  in  Dunham  v.  Jack- 
son,  (see  6  Wend.  22 — 25,)  the  appellant,  Jackson,  commenced 
a  suit  at  law  against  the  respondent  to  recover  the  amount  of  mo- 
ney for  which  that  and  other  stock  was  pledged,  such  stock  hav- 
ing become  entirely  valueless.  The  respondent  thereupon  filed 
his  bill  in  this  cause,  before  the  vice-chancellor  of  the  first  circuit, 
to  restrain  the  prosecution  of  the  suit  at  law,  and  to  have  the 
value  of  the  stock,  as  it  stood  in  March,  1827,  applied  in  ex- 
tinguishment of  his  indebtedness.  It  appeared  upon  the 
pleadings  and  proofs,  that,  in  November,  1826,  the  respon- 
dent borrowed  of  the  appellant  $200,  and,  in  February  fol- 
lowing, borrowed  the  additional  sum  of  $500.  The  respon- 
dent was  also  indebted  to  the  appellant  on  other  demands 
for  money  lent,  in  the  sum  of  about  $600.  For  the  pur- 
pose of  securing  the  payment  of  the  whole  amount  of  this 
indebtedness,  the  respondent  pledged  to  the  appellant  fifty-one 
shares  of  stock  in  the  Williamsburgh  Ferry  Company.  Eleven 


ALBANY,  DECEMBER,  1842.  523 

Jackson  v.  Griiwold. 

of  these  shares  were  pledged  at  the  time  of  the  $200  loan, 
and  the  remainder  on  making  the  loan  of  $500.  The  stock 
belonged  to  Caroline  Dunham,  for  whom  the  respondent  acted 
as  general  agent,  and  for  whose  benefit  the  loan  of  $500  was 
made  ;  the  respondent  giving  his  due-bills  in  different  sums  for 
that  amount.  The  bill  alleged  that,  in  March,  1827,  the  re- 
spondent tendered  to  the  appellant  the  full  amount  of  all  the 
money  loaned  to  him  by  the  appellant,  and  demanded  a  re- 
transfer  of  the  stock,  which  the  appellant  refused.  The  appel- 
lant, in  his  answer,  denied  the  tender,  and  insisted,  among 
other  things,  that  the  decree  in  the  case  of  Dunham  \.  Jackson 
was  a  bar  to  the  relief  sought  by  the  respondent.  The  testi- 
mony of  the  principal  witness  (Mr.  Tracy)  showed  that  a  valid 
tender  was  made,  as  charged  in  the  bill,  within  the  principle 
of  the  cases  cited  and  approved  by  Marcy,  J.  in  Dunham  v. 
Jackson ,  (6  Wend.  33,  34.)  Such  other  facts  of  the  case  as 
are  deemed  material  will  be  found  sufficiently  stated  in  the 
opinion  of  Cowen,  J.  For  a  more  detailed  statement,  together 
with  the  opinion  of  the  vice-chancellor,  see  2  Edw.  Ch.  Rep.  461 
et  seq.  On  appeal  from  the  decree  of  the  vice-chancellor,  the 
following  opinion  was  delivered  by 

WALWORTH,  Chancellor.  This  is  on  appeal  by  the  defen- 
dant, Jackson,  from  a  decree  of  the  vice-chancellor  of  the  first 
circuit.  The  bill  is  founded  upon  the  same  matters  which 
were  in  litigation  in  this  court  in  the  case  of  Dunham  v.  Jack- 
son, (6  Wend.  22,)  in  which  case  Caroline  Dunham,  the  now 
co-defendant  of  Jackson,  was  the  complainant,  and  the  present 
complainant,  Griswold,  was  her  agent  and  witness  merely. 
The  complainant  in  that  case  having  neglected  to  redeem 
the  stock  within  the  time  required  by  the  decree,  so  that 
the  equity  of  redemption  had  become  barred,  and  the  stock 
having  become  worthless,  Jackson  commenced  a  suit  against 
Griswold  to  recover  the  amount  for  which  the  stock  was 
pledged.  Griswold  thereupon  filed  his  bill  in  this  cause 
against  Jackson,  to  restrain  the  proceedings  in  the  suit  at  law, 


524  CASES  IN  THE  COURT  OF  ERRORS. 

Jackson  v.  Griswold. 


and  for  further  relief.  The  answer  of  the  defendant  on  oath 
is  waived,  and  the  witness  Tracy  now  proves  such  a  tender 
as  Mr.  Justice  Marcy  thought  would  have  been  sufficient,  if  he 
had  testified  to  it  in  the  former  suit. 

I  think  the  vice-chancellor  is  right  in  supposing '  that  the 
decree  in  the  former  suit  is  not  a  bar  to  the  filing  of  this  bill 
by  Griswold j  so  far  as  it  was  necessary  to  profect  his  rights, 
he  not  having  been  a  party  to  the  former  suit.  The  complain- 
ant, if  he  succeeds  at  all,  must  succeed  upon  the  case  made  by 
his  bill,  and  not  upon  the  supposed  state  of  facts  set  up  in  the 
defendant's  answer  and  not  proved.  The  bill,  which  is  sworn 
to,  states  positively  that  the  forty  shares  of  stock  last  pledged 
was  the  stock  of  Caroline  Dunham,  the  complainant's  sister,  and 
that  the  complainant  pledged  it  for  her,  as  her  agent,  to  secure 
the  loan  of  $500,  which  was  likewise  made  for  her.  The  com- 
plainant therefore  has  no  claim  against  Jackson  on  account  of  a 
loss  upon  that  stock  ;  and  if  the  former  had  not  made  himself 
personally  liable  for  the  loan  of  $500,  which  he  says  he  made  as 
the  agent  for  his  sister,  by  signing  the  due-bills  with  his  own 
name  only,  the  bill,  as  to  those  forty  shares  of  stock,  would,  of 
course,  be  dismissed.  For,  upon  his  own  showing,  he  is  in  no 
way  responsible  to  his  sister  for  the  return  of  that  stock,  and  has 
therefore  no  right  to  apply  any  claim  against  Jackson  arising 
out  of  that  transaction,  as  an  equitable  defence  or  off-set  to  Jack- 
son's other  claims  against  him. 

But  so  far  as  respects  his  personal  liability  to  Jackson  for 
the  $500  loan,  for  which  those  forty  shares  of  stock  were 
pledged,  if  Jackson,  by  refusal  to  permit  a  redemption  of  that 
stock  at  the  time  of  the  tender,  caused  a  loss  upon  the  stock 
to  more  than  the  amount  of  the  $500  loan  and  interest,  he 
ought  not,  in  equity,  to  be  permitted  to  proceed  against 
Griswold  personally  for  any  part  of  the  $500  loan,  as  to  which, 
upon  the  case  stated  by  the  bill,  Griswold  was  in  the  situation 
of  a  mere  surety  for  his  sister. 

The  other  eleven  shares  of  the  stock  were  differently  situ- 
ated. Whether  they  actually  belonged  to  Griswold,  as  the 


ALBANY,  DECEMBER,  1842.  525 


Jackson  t.  Griswold. 


answer  supposes,  or  had  only  been  lent  to  him  by  his  sis- 
ter as  stated  in  the  bill,  the  loss  upon  those  eleven  shares  of  the 
stock  fell  upon  him.  For  if  it  was  her  stock,  and  only  lent 
to  him,  he  was  bound  to  return  such  stock  to  her  or  pay  its 
value,  although  she  has  failed  to  recover  it  of  Jackson  ;  and 
the  decree  in  the  former  suit  would  afford  Griswold  no  defence 
against  her  claim  to  compensation.  Whatever  was  the  actual 
value,  therefore,  of  those  eleven  shares  at  the  time  of  the  ten- 
der and  offer  to  redeem,  is,  under  the  circumstances,  an  equita- 
ble off-set  against  the  debts  which  the  defendant  Jackson  then 
held  against  Griswold  beyond  the  $500  and  interest  borrowed 
by  the  complainant  as  the  agent  of  Caroline  Dunham.  The 
amount  of  those  other  debts,  as  I  understand  the  case,  must 
have  been  considerably  more  than  the  market  value  of  the 
eleven  shares  at  the  time,  even  if  Jackson  was  not  entitled  to 
the  $200,  which  was  then  a  matter  in  dispute  between  the  par- 
ties. The  whole  amount  claimed,  including  the  $500  bor- 
rowed for  Caroline  Dunham  and  the  $200  in  disput^,  was 
$1300,  which  would  leave  a  balance  of  about  $600  of  Gris 
wold's  personal  debts,  excluding  the  amount  in  dispute,  and 
$800  including  that  amount.  The  contract  price  of  the  stock 
at  that  time,  as  stated  in  the  complainant's  bill,  was  eighty 
per  cent,  upon  its  par  value,  or  $440  for  the  value  of  the 
eleven  shares ;  and,  according  to  the  master's  report  in  the 
former  case,  it  was  about  that  time  worth  76  per  cent,  or 
$418. 

The  vice-chancellor,  therefore,  has  erred  in  supposing  that 
the  amount  which  this  complainant  was  entitled  to,  on  account 
of  the  loss  upon  the  stock,  as  an  equitable  off-set  against  his 
own  private  debts,  was  more  than  the  amount  thereof.  The 
decree  is  consequently  erroneous  in  awarding  a  perpetual  in^ 
junction  against  the  defendant's  proceeding  to  collect  any  part 
of  the  demands  for  which  the  suit  at  law  was  brought.  This 
is  an  error  which  he  would  not  have  fallen  into  if  he  had  not, 
in  such  a  complicated  case,  inadvertently  supposed  that  the 
case  made  by  the  complainant's  bill  would  entitle  him  to  the 


526  CASES  IN  THE  COURT  OF  ERRORS 


Jackson  v.  Griswold. 


amount  of  the  loss  on  the  forty  shares  of  stock,  not  only  as 
an  equitable  defence  to  the  $500  borrowed  for  C.  Dunham, 
for  which  he  stands  in  the  situation  of  a  mere  security,  but 
also  as  an  off-set  against  his  own  personal  debts.  That,  as  I 
have  before  shown,  cannot  be  done,  without  virtually  annul- 
ling the  decree  of  this  court,  and  the  court  for  the  correction 
of  errors  in  the  former  case.  For  if  he  is  allowed  the  excess 
of  the  value  of  that  stock  beyond  the  $500  borrowed  for  her 
by  him  as  her  agent,  to  be  off-set  against  his  own  personal 
debt,  she  can  recover  it.  from  him  as  money  received  to  her 
use.  The  proper  decree,  therefore,  if  Jackson  had  not  pro- 
ceeded to  judgment  and  execution  in  the  suit  at  law,  would 
have  been  for  a  perpetual  injunction  restraining  him  from  col- 
lecting from  Griswold  any  part  of  the  $500  borrowed  as  the 
agent  of  Caroline  Dunham ;  and  that  the  value  of  the  eleven 
shares  of  the  stock  at  the  time  of  the  tender  should  be  applied 
in  part  payment  of  the  other  debts,  and  the  balance  only  of 
those*  debts  and  interest  be  collected  of  Griswold ;  without 
prejudice  to  the  right  of  Jackson  to  collect  the  $500  and 
interest  from  Caroline  Dunham. 

I  am  inclined  to  think  the  vice-chancellor  was  right  in  re- 
ceiving the  petition  and  making  the  decree  to  refund  the  money 
collected  pending  the  litigation,  if  any  more  wa's  received  than 
ought,  in  equity,  to  have  been  collected  of  Griswold  ;  as  that 
was  a  mere  consequential  direction  founded  on  the  decree 
upon  the  merits.  But  it  was  erroneous  to  include  in  the 
amount  to  be  refunded,  the  costs  of  the  suit  against  the  bail 
who  was  not  a  party  to  this  suit.  And  those  costs  were  incur- 
red by  the  neglect  of  the  complainant  to  bring  the  fund  into 
court.  Those  questions,  however,  become  immaterial,  from  the 
conclusions  at  which  I  have  arrived  as  to  the  claim  of  Griswold 
to  the  benefit  of  the  excess  of  value  of  the  forty  shares  of  stock 
in  which  he  had  no  interest  farther  than  to  extinguish  his  per- 
sonal liability  for  the  $500  loan. 

The  decree  appealed  from  must  be  reversed.  And  a  de- 
cree must  be  entered  declaring  that  the  decree  in  the  former 


ALBANY,  DECEMBER,  1842.  527 

Jackson  r.  GriswoRL 

cause  is  no  bar  to  the  complainant's  right  to  show  an  equitable 
extinguishment  of  his  liability  for  the  $500,  which,  in  his  bill, 
is  alleged  to  have  been  borrowed  of  the  defendant  Jackson 
for  Caroline  Dunham  as  her  agent,  upon  the  pledge  of  the 
forty  shares  of  stock  in  which  the  complainant  had  no  interest 
either  as  borrower  of  the  stock  or  otherwise  ;  and  that,  upon 
the  facts  appearing  upon  the  pleadings  and  proofs  in  this  case, 
the  complainant  has  a  good  and  valid  defence  to  any  personal 
claim  against  him  for  the  recovery  of  the  $500  so  borrowed 
and  the  interest  thereon.  It  must  be  further  declared  and 
decreed,  that  as  to  the  eleven  shares  of  stock  borrowed  from 
Caroline  Dunham  by  the  complainant  as  alleged  in  his  bill,  be 
was  personally  liable  to  her  for  the  value  thereof,  and  is  there- 
fore entitled  to  claim  such  value  against  the  defendant  Jackson, 
in  the  same  manner  as  if  it  had  been  the  complainant's  own 
stock,  notwithstanding  the  decree  in  the  former  suit,  to  which 
he  was  not  a  party  j  and  that,  upon  the  facts  appearing  upon 
the  pleadings  and  proofs  in  this  case,  the  value  of  the  said 
eleven  shares  at  the  time  of  the  tender,  as  testified  to  by  Tracy, 
was  an  equitable  satisfaction  to  that  extent  of  the  several 
debts  or  demands  due  and  owing  to  the  defendant  Jackson 
from  the  complainant,  at  that  time,  other  than  the  debt  of  $'500 
for  moneys  borrowed  as  the  agent  of  Caroline  Dunham.  It 
must,  therefore,  be  referred  to  a  master  in  New-York,  to  ascer- 
tain the  amount  of  those  debts,  and  the  value  of  the  eleven 
shares  of  stock  at  that  time,  and  to  state  the  balance  due  to 
the  defendant  Jackson,  on  account  of  such  debts,  beyond  the 
value  of  such  stock.  And  the  master  must  also  ascertain  and 
report  what  sum  or  sums  have  been  collected  of  the  complain- 
ant, or  his  bail,  for  the  principal  or  interest  of  any  such  debts,  or 
for  the  principal  or  interest  of  the  loan  of  $500,  made  by  Gris- 
wold  as  the  agent  of  Caroline  Dunham  ;  and  he  must  further 
ascertain  the  excess  thus  collected  beyond  what  Jackson  was  en- 
titled to  receive  for  the  balance  so  ascertained  and  the  interest 
thereon,  and  to  compute  the  interest  on  such  excess  from  the 
time  it  was  paid  by  the  complainant  or  his  bail.  And  that, 


528  CASES  IN  THE  COURT  OF  ERRORS. 


Jackson  v.  Griswold. 


upon  the  coming  in  and  confirmation  of  the  master's  report,  the 
defendant  Jackson  pay  to  the  complainant,  or  his  solicitor,  for 
the  use  of  the  bail,  if  he  has  not  already  been  indemnified  by 
the  complainant,  the  amount  of  such  excess  with  interest 
thereon  from  the  date  of  the  master's  report. 

Neither  party  is  to  have  costs  against  the  other  upon  this  ap- 
peal. But  as  the  complainant  has  succeeded  to  nearly  the 
whole  extent  of  his  claim,  I  shall  give  him  his  costs  in  the 
court  below,  except*  so  much  of  his  costs  as  have  been  pro- 
duced by  his  neglect  to  make  Caroline  Dunham  a  party  to  the 
suit  at  the  time  of  filing  his  bill.  And  neither  party  is  to  have 
costs  as  against  the  other  upon  the  reference  hereby  directed. 

A  decree  having  been  entered  in  conformity  with  the  direc- 
tions thus  given,  Jackson  appealed  to  this  court,  where  the 
case  was  argued  by 

E.  Sandford,  for  the  appellant,  and 
J.  V.  L,  Pruyn,  for  the  respondent. 

COWEN,  J.  The  only  question  of  fact  in  the  case  is  whether 
a  tender  of  the  money  due  to  Jackson  was  made  in  March, 
1827,  so  that  he  was  obliged  to  re-transfer  the  stock  at  that 
time.  The  oral  evidence  was  clearly  sufficient  to  make  out  the 
fact,  if  the  main  witness  was  to  be  credited.  The  court  below 
thought  he  was  ;  and  there  is  nothing  in  the  case  upon  which 
we  should  be  warranted  in  coming  to  a  different  conclusion 
upon  that  evidence. 

But  the  same  question  had  been  before  examined  and  de- 
cided in  chancery,  on  a  bill  filed  by  Caroline  Dunham  against 
Jackson.  (See  6  Wend,  22.)  Her  bill  sought  an  account  for 
40  of  the  shares  only,  which  she  alleged  had  been  independent- 
ly pledged  to  secure  the  $500  loan.  She  also  claimed  an  ac- 
count for  the  value  of  the  stock  at  the  time  of  the  tender.  The 
defence  interposed  was,  that  the  51  shares  were  pledged  to 


ALBANY,  DECEMBER,  1842.  529 

Jackson  v.  Griswold. 

secure  both  the  $500  and  the  debt  due  from  Griswold  as 
principal.  The  proof  failing  to  make  out  the  alleged  tender, 
the  decree  was,  upon  that  point,  against  her.  It  merely  allow- 
ed her  the  right  to  redeem,  on  paying  the  whole  sum  reported 
due  both  from  her  and  Griswold,  with  costs.  She  omitting  to 
make  the  payment,  her  bill  was  dismissed  ;  and  the  title  to  the 
whole  stock  thus  became  vested  in  Jackson.  Griswold  was  the 
agent  of  Caroline  Dunham  in  the  prosecution  of  that  suit,  and 
a  witness  to  prove  the  tender.  He  also  h^ld  the  relation  of  her 
surety  for  the  payment  of  the  8500,  by  having  given  his  due 
bills  for  that  sum.  The  decree  in  that  cause  is  set  up  by  Jack- 
son's answer  as  a  bar  to  the  present  suit.  It  was  disallowed 
by  the  chancellor  ;  and  whether  rightly,  presents,  I  think,  the 
only  question  calling  for  much  observation. 

The  question  is  simply,  whether  a  decree  or  judgment  in  a 
suit  between  the  creditor  and  the  principal  debtor  shall  bind 
the  surety  for  the  same  debt ;  the  surety  being  also  agent  for 
the  principal  in  the  commencement  and  conduct  of  the  suit. 
This  question,  standing  independently  of  the  agency,  has  re- 
cently been  examined  in  the  supreme  court,  which  held  that  a 
mere  surety  for  the  payment  of  a  debt,  without  any  agreement, 
express  or  implied,  to  be  bound  by  a  suit  between  the  principal 
parties,  is,  at  Common  law,  no  more  affected  by  its  event,  if 
against  him,  than  a  mere  stranger.  (Douglass  v.  Howland,  24 
Wend.  35,  52.)  I  had  occasion  there  to  consider  the  question 
on  principle  and  authority,  and  to  show  the  reason  why  the 
civil  law  holds  a  different  rule.  Under  this  law,  the  surety 
has  a  right  of  appeal.  A  decision  against  him,  therefore, 
would  be  prima  facie  evidence.  No  doubt,  as  the  supreme 
court  held  at  the  last  term,  in  a  replevin  case,  a  decision  against 
the  debt  would  discharge  him.  That,  however,  is  not  on  the 
ground  that  he  is  a  party,  but  because  the  judgment  or  de- 
cree extinguishes  the  debt ;  and  the  principal  thing  being 
thus  destroyed,  the  incident — the  obligation  of  the  surety — is 
destroyed  with  it.  The  effect  is  the  same  as  a  release  by  the 
creditor,  or  a  payment  by  the  debtor,  who  may  do  any  act  in 
VOL.  IV.  67 


c 

'"    '    " 


diMbarge  of  bis  surety,  but  nothing  by  which  be  shall  be 
eluded  beyond  bis  original  obligation.  A  test,  somewhat  re- 
sembliog  that  of  the  civil  law,  is  furnished  by  Doyly  v.  Smith, 
(2  C'«*.  C'A.  1 19,)  It  i»  there  said,  that  the  dismission  of  a 
former  bill  filed  by  a  third  person,  though  involving  the  same 
equity  with  the  subsequent  bill,  is  no  bar,  because  the  party 
filing  the -latter  could  not  bare  bad  a  bill  of  review  in  the  first 
suit, 

!  ;«»•  only  difference  between  thepresentcaseand  those  cited, 
lies  in  the  fact,  that  here  it  appears  the  former  suit  was  instituted 
and  conducted  throughout  by  the  surety,  as  the  agent  for  his 
principal.  And  be  seems  to  have  litigated  with  great  severity ; 
for  there  wa»  an  appeal  to  the  court  of  errors.  (Dunham  r. 
Jackton,  6  Wend.  22.)  There  are  certainly  many  cases  where 
a  person,  though  not  a  nominal  party  to  the  suit,  shall  yet  be 
concluded  by  it,  because  he  lias  in  fact  taken  the  management 
of  the  cause ;  nay,  where  ho  has  had  notice  of  its  pendency, 
u»d  a  chance  to  litigate,  but  neglected  to  do  so.  A  familiar 
citsu  is  that  of  a  party  holding  the  mere  equitable  interest — an 
UMHignee  or  cestui  que  trust.  So,  where  he  is  a  guarantor  or 
indemnitor  of  the  party  against  the  consequences  of  the  suit. 
In  the  Hrst  case  he  has  the  right  to  a  standing  in  court;  and, 
in  the  latter  case,  the  party  to  be  indemnified  is  bound  to  al- 
low him  to  come  in  and  manage  the  litigation,  or  hazard,  by  a 
refusal,  the  right  to  recover  over.  In  general,  the  failure  to 
nmkc  n  successful  defence,  on  notice  to  the  indemnitor,  will  be 
hidden  to  conclude  him,  though  this  is  not  always  so,  nor  does 

'I"  ""I'',  I  .'I'l'"  lirinl,  (u\n  ;my  r.isc  except  Ili;i1  of  :i  defence. 
I1-*''"  'I"'",  'I"  <|iirslnm  r.  nut  In-l  \vrni  the  creditor  ;IIK|  indciu- 

nitor,  so  uiuc.h  UN  between  the  Intter  and  the  nominal  defen- 
dant. It  in  not  a  case  of  principal  and  surety.  The  indemni- 
tor  in  quasi  a  party  in  interest,  like  an  assignee  j  but  I  am 

SIU.IM-    "I    I"'    '•>'•'•    xvlinv    luc.c    surely  is  hound    to    drfuid,  in 

order  to  wive  himself  from  injury  by  a  judgment  or  decree 
ttguiust  his  principal,  even  though  he  have  notice  both  from  the 
creditor  and  the  principal.  It  is  the  business  of  the  latter  to 


ALBANY,  DECEMBER,  1842.  53] 


Jackna  •.  Grwwold. 


save  his  surety  from  all  harm.  The  principal  is  the  indemni- 
tor ;  and,  without  being  personally  sued,  I  do  not  see  upon 
what  ground  the  surety  could  claim  to  defend,  as  matter  of 
right,  for  any  purpose.  The  objection  is  still  stronger  to  his 
claiming  that  a  suit  should  be  brought  in  his  principal's  name 
to  annul  or  discharge  the  debt.  The  direct  course  is  to  file  a 
bill,  as  the  surety  has  here  done,  in  his  own  name.  It  follows, 
that  Griswold  had  no  such  interest  in  Caroline  Dunham's  suit 
as  gave  him  a  right  to  control  it.  He  was  a  mere  naked  agent, 
his  power  being  liable  to  revocation  at  any  time.  She  might  have 
dismissed  her  bill,  or  declined  to  appeal,  in  despite  of  Griswold, 
without  deducting  from  or  adding  to  his  right  of  defence  j  nor 
could  he,  in  the  language  of  Doyly  \.  Smith,  have  had  a  bill 
of  review  on  the  decree  which  passed.  Had  Griswold  volun- 
tarily come  in  and  litigated  as  surety,  with  the  consent  of  Jack- 
son, in  the  name  of  Caroline  Dunham,  the  case  might  have 
been  a  different  one.  So,  if  the  creditor  had  served  notice  on 
him,  and  his  principal  had  interposed  no  obstruction.  The  su- 
preme court  thought,  in  Douglass  v.  Howland,  that  such  a  liti- 
gation would  affect  the  surety.  The  point,  however,  was  not 
involved  in  that  case,  and  the  remark  was  thrown  out  on  the 
strength  of  several  authorities  in  neighbouring  states  which  ap- 
peared to  favor  the  distinction.  (24  Wend.  66,  7.)  Should 
the  question  arise,  it  may  still  be  open  to  observation. 

The  case  of  Willey  v.  Paulk,  (6  Conn.  Rep.  74,)  was  not 
cited  by  counsel  in  Douglass  v.  Howland,  and  was  overlooked 
by  the  court.  The  learned  supreme  court  of  Connecticut 
there  cite  the  rule  of  the  civil  law  with  approbation,  and  de- 
clare it  to*be  the  ground  of  their  decision.  The  action  was 
against  the  surety  in  a  probate  bond,  conditioned,  among  other 
things,  that  the  executor  should  settle  the  estate  according  to 
law.  The  evidence  offered  was  a  judgment  against  the  exec- 
utor, an  execution  and  demand  of  payment,  which  the  executor 
refused  to  make,  though  he  had  assets.  The  judgment  was 
held  to  be  conclusive.  With  deference,  it  seems  to  me  that  a 


532  CASES  IN  THE  COURT  OP  ERRORS. 


Jackson  e.  Griswold. 


judgment  against  the  executor  and  a  refusal  to  pay,  the  estate 
having  assets,  were  per  se  within  the  terms  of  the  condition. 
The  test  of  a  failure  to  settle  according  to  law  was  an  unpaid 
judgment;  and  the  case  was,  therefore,  the  same  in  effect  as 
if  the  condition  had  said  :  "  We  will  abide  all  judgments  that 
shall  be  obtained  against  the  executor."  Thus  the  rule  of  the 
civil  law  was  brought  conventionally  into  the  particular  case, 
as  the  supreme  court  admitted  it  might  be  in  Douglass  v. 
Rowland.  In  the  case  of  De  Forest  v.  Strong,  (8  Conn.  Rep. 
513,)  the  surety  proved  a  judgment,  execution,  levy  and  set- 
off  of  land  against  the  principal,  insisting  that  the  judgment 
was  therefore  paid.  The  plaintiff  was  allowed  to  prove  a  sub- 
sequent suit  and  recovery  against  the  principal,  on  the  original 
judgment,  in  order  to  repel  the  evidence  of  payment.  The 
court  held  that  the  latter  judgment  was  pertinent  to  disprove 
the  fact.  It  was  not  necessary  in  either  of  the  Connecticut 
cases  cited,  to  say,  with  the  civil  law,  that  the  mere  relation  of 
principal  and  surety,  in  its  own  nature,  subjects  the  latter,  as  a 
party  or  privy,  to  the  binding  effect  of  a  judgment  against  the 
principal. 

The  point  is  by  no  means  free  from  difficulty  ;  but,  on  the 
whole,  I  think  the  decree  of  the  court  of  chancery  was  right, 

and  should  be  affirmed. 

*         , 

All  the  members  of  the  court  who  heard  the  argument,  (ex- 
cept Senators  DIXON  and  ROOT,)  concurring  in  this  resujt,  the 
decree  of  the  chancellor  was  AFFIRMED. 


DECISIONS  OP   CASES 


AROCKD   AT   THE 


SPECIAL     TERMS. 


Matter  of  WHITNEY,  a  non-resident  debtor. 

A  commission  to  examine  witnesses  residing  out  of  the  state  will  not  be  granted  in 
a  proceeding  under  the  statute  against  an  absconding,  concealed  and  non-rest- 
dent  debtor,  for  the  purpose  of  enabling  the  debtor  to  controvert  the  claims  of 
creditors  before  the  trustees,  &c. 

MOTION  for  a  commission  to  examine  a  witness  residing  in  an- 
other state.  Proceedings  were  instituted  before  a  supreme  court 
commissioner  on  the  application  of  Shaw,  against  Whitney,  a 
non-resident  debtor,  and  trustees  appointed  under  the  statute. 
(1  R.  S.  764  et  seq.,  2d  ed.)  In  his  application,  Shaw  claimed 
that  Whitney  was  indebted  to  him  in  the  sum  of  $2500.  The 
trustees  gave  the  usual  notice  for  the  creditors  of  Whitney  to 
deliver  their  demands  to  them  by  the  24th  of  May,  1842,  (Id. 
p.  799,  §  8,)  and,  on  the  12th  of  that  month,  Whitney  gave 
notice  of  this  motion,  intending  to  controvert  the  claim  of  Shaw. 
(Id.  p.  .798,  §  7,  subd.  8.)  Whitney's  affidavit  stated,  among 
other  things,  that  he  had  a  good  defence  on  the  merits  as  ad- 
vised &c.,  and  that  J.  W.  Garnsey,  a  resident  of  Tioga,  Penn- 
sylvania, was  a  material  witness  &c.,  without  whose  testimony 
he  (Whitney)  could  not  safely  proceed  to  a  hearing  before 

[533f 


534       CASES  IN  THE  SUPREME  COURT. 


Meech  v.  Calkins. 


the  trustees  &c.     The  officer  before  whom  the  proceeding  was 
instituted  made  his  report  to  this  court  in  April,  1842. 

W.  M.  Pattison,  for  the  motion. 
i 

D.  S.  Dickinson^  contra. 

By  the  Court  j  NELSON,  Ch.  J.  The  matter  in  controversy 
between  these  parties  is  not  within  the  statute  authorizing  the 
award  of  a  commission  to  examine  witnesses  residing  out  of  the 
state,  as  there  is  no  action  pending  in  the  court  and  no  issue  of 
fact  joined.  (2  R.  S.  393,  §  11.)  The  right  to  the  commis- 
sion depends  altogether  upon  the  statute,  no  such  proceeding 
being  known  to  the  common  law.  (Tidd,  741 ;  Francis  v. 
Gilmore,  1  Bos.  fy  Put.  177  ;  1  rfrchb.  174.)  This  case  is 
the  same  in  principle  as  that  of  Wood  v.  Howard  Ins.  Co.,  (18 
Wend.  646.) 

Motion  denied. 


MEECH  vs.  CALKINS  and  others. 

In  an  action  of  debt  on  bond,  the  defendant  moved  for  a  commission  to  examine 
witnesses,  with  a  stay  of  proceedings  until  its  return,  on  an  affidavit  that  he 
had  "  a  good  and  substantial  defence  to  tile  bond"  &c. :  Held,  that  the  affidavit 
was  defective  in  not  stating  a  defence  on  the  merits ;  and  a  stay  of  proceedings 
was,  for  this  reason,  denied. 

D.  Burwellj  for  the  defendants,  moved  for  a  commission  to 
examine  witnesses  residing  out  of  the  state,  with  a  stay  of  pro- 
ceedings until  its  return.  The  action  was  debt  on  bond,  and 
the  affidavit  on  which  the  motion  was  founded  stated  that  the 
defendants  had  "  a  good  and  substantiaji  defence  to  the  oond,"  &c. 

R.  W.  Peckha»9  for  the  plaintiff,  objected  that  the  affidavit 


ALBANY,  JUNE,  1843.  535 


The  Bank  of  Utica  w.  Root 


was  defective  in  not  alleging  that  the  defendants  had  a  defence 
on  the  merits. 

By  the  Court,  NELSON,  Ch.  J.  The  defendants  may  take  a 
rule  for  a  commission  ;  but  they  are  not  entitled  to  a  stay  of 
proceedings,  the  affidavit  being  clearly  defective. 

Ordered  accordingly. (a) 

(a)  See  Warner  v.  Harvey,  (9  Wend.  444 ;)  Seymour't  executors  v.  Strong, 
(19  id.  98 ;)  also  ante,  p.  64,  5,  note,  and  the  cases  there  cited  relating  to  the  form  of 
an  affidavit  of  merits. 


THE  BANK  OF  UTICA  vs.  ROOT  and  others. 

In  verifying  a  plea  in  bar  concluding  to  the  country  under  the  1st  rule  of  May  term, 
1840,  an  allegation  that  the  defendant  has  "  a  full  and  substantial  defence" 
&c.  is  not  sufficient ;  the  affidavit  should  be  that  the  defendant  has  "tigood  and 
substantial  defence"  &c.,  in  the  language  prescribed  by  the  rule. 

MOTION  to  set  aside  default  for  want  of  a  plea.  The  suit 
was  upon  a  promissory  note,  a  copy  of  which  was  served  with 
the  declaration,  together  with  a  notice  that  the  note  was  the 
only  cause  of  action  on  which  the  plaintiffs  relied.  The  defen- 
dants interposed  a  plea  of  non  assumpsitj  accompanied  by  an 
affidavit  that  they  had  fully  and  fairly  stated,  &c.,  and  that  they 
had  "  a  full  and  substantial  defence"  &c.,  instead  of  "a  good 
and  substantial  defence"  &c.  as  required  by  rule  1st  of  May 
term,  1840.  The  plaintiffs'  attorney  returned  the  plea  and 
affidavit,  with  notice  that  they  would  be  disregarded  by  reason 
of  this  defect.  No  other  papers  having  been  served  by  the  de- 
fendants within  the  time  for  pleading,  the  plaintiffs'  attorney 
caused  the  defendants'  default  for  want  of  a  plea  to  be  entered. 


536       CASES  IN  THE  SUPREME  COURT. 


Wallace  v.  Bond. 


D.  Burwell,  for  the  defendants. 

'•     . 

H.  H.  Martin,  for  the  plaintiffs. 

By  the  Court,  NELSON,  Ch.  J.  The  affidavit  was  defective 
in  not  pursuing-  the  language  of  the  rule,  (22  Wend.  644,)(a), 
and  the  motion  must  therefore  be  denied. 

Ordered  accordingly. 

(a)  See  Fitzburgh  v.  Truaz,  (1  Hill,  944,  and  note;)  also  Colder  v.  Lan- 
sing, (id.  212 ;)  Richmond  v.  Cowles,  (2  id.  359 ;)  and  the  note  to  Brit  tan  v. 
Peabody,  ante,  p.  64,  5. 


WALLACE  and  another  vs.  BOND  and  another. 

Where  a  motion  was  made  to  change  the  venue  from  New- York  to  Livingston 
county,  upon  an  affidavit  of  one  hundred  and  sixteen  witnesses,  and  it  appeared 
from  the  opposing  papers  that  the  suit  was  for  a  conspiracy  hi  obtaining  goods 
by  false  pretences — that  one  of  the  defendants  had  declared  he  wanted  the  wit- 
nesses to  prove  the  good  character  of  his  co-defendant — and  that  the  plaintiff 
had  fifteen  witnesses  residing  in  New- York,  where  the  transaction  occurred  for 
which  the  suit  was  brought  t  Held,  that  the  motion  was  evidently  an  attempted 
fraud  upon  the  practice  of  the  court,  and  should  therefore  be  denied,  with  «osta. 

R.  W.  Peck/ham,  for  the  defendants,  moved  to  change  the 
venue  from  the  city  and  county  of  New- York  to  the  county  of 
Livingston,  on  an  affidavit  setting  forth  the  names  of  one  hun- 
dred and  sixteen  witnesses  residing  in  the  latter  county. 

J.  S.  Bosworth,  for  the  plaintiffs,  read  an  affidavit  stating  that 
the  action  was  for  a  conspiracy  in  obtaining  goods  upon  false 
pretences  j  that  the  transaction  occurred  in  the  city  of  New- 
York  ;  that  one  of  the  defendants  had  declared  he  wanted  the 
witnesses  named  in  the  moving  papers  for  the  purpose  of  proving 
the  good  character  of  his  co-defendant  j  and  that  there  were 


ALBANY,  JUNE,  1842.  537 


Finehout  v.  Crain. 


fifteen  material  witnesses  for  the  plaintiffs  residing  in  the  city 
of  New- York. 

By  the  Court,  NELSON,  Ch.  J.  This  motion  is  evidently  an  at- 
tempted fraud  upon  the  practice  of  the  court,  and  must  there- 
fore be  denied,  with  costs. 

Ordered  accordingly. (a) 

(a)  See  the  note  to  Brittan  v.  Peabody,  ante,  p.  63,  pi.  3 ;  also  id.  p.  68,  pi.  8. 


FINEHOUT  vs.  GRAIN,  sheriff,  &c. 

A  summons  in  replevin  need  not  specify  the  property  sought  to  "be  recovered  ;  and 
if  it  do  so,  that  part  of  it  may  be  rejected  as  surplusage. 

Where,  in  replevin,  several  articles  of  property  were  described  in  the  writ,  but,  in 
consequence  of  directions  given  by  the  plaintiff,  a  part  of  them  only  was  seized 
by  the  officer ;  held,  that  the  plaintiff  might  nevertheless  include  the  whole  in 
his  declaration,  and  this,  though  the  summons  served  described  the  articles 
seized,  without  mentioning  the  residue. 

REPLEVIN.  The  writ  was  for  detaining  one  canal  boat  and 
its  furniture,  two  sorrel  horses,  two  brown  horses  and  two 
sets  of  double  harness,  the  goods  and  chattels  of  the  plaintiff. 
The  coroner,  by  direction  of  the  plaintiff,  seized  only  the  canal 
boat  and  the  two  sorrel  horses  ;  and  the  summons  served  upon 
the  defendant  mentioned  no  other  property  than  that  so  actually 
seized.  The  coroner  returned  that  he  had  replevied,  taken 
and  delivered  .to  the  plaintiff  the  boat  and  sorrel  horses,  and  had 
served  the  defendant  with  a  copy  of  the  "  annexed  summons," 
which  enumerated  all  the  articles  of  property  mentioned  in  the 
writ.  It  appeared  by  the  coroner's  affidavit  that  he  inadver- 
tently neglected  to  erase  from  the  summons  so  returned  by 
him,  the  goods  not  seized,  as  was  done  in  the  copy  served. 
The  plaintiff  declared  in  the  detinet  for  all  the  property  men- 
tioned in  the  writ. 

VOL.  IV.  68 


538  CASES  IN  THE  SUPREME  COURT. 

Briggs  v.  Allen. 

D.  Burwell,  for  the  defendant,  moved  that  the  plaintiff  be 
ordered  to  strike  out  of  the  declaration  such  articles  of  proper- 
ty as  were  not  seized,  so  as  to  make  the  declaration  conform- 
able to  the  copy  of  the  summons  served  upon  the  defendant. 

JV.  Hill)  jr.  contra. 

By  the  Court,  NELSON,  Ch.  J.  The  statute  does  not  require 
that  the  property  should  be  specified  in  the  summons  ;  (2  R. 
S.  524,  §  9 ;  Cutler  v.  Rathbone,  sheriff,  fyc.  1  Hill,  204  j) 
and  the  description  of  it  contained  in  the  one  delivered  in  this 
case,  may  therefore  be  rejected  as  surplusage.  There  is  then 
no  irregularity  on  the  face  of  the  papers. 

The  return  of  the  coroner  shows  that  only  a  part  of  the  goods 
described  in  the  writ  was  taken  and  delivered  to  the  plaintiff ; 
but  this  will  not  prevent  him  frQm  proceeding  in  respect  to  the 
whole  of  the  property,  as  we  held  in  the  recent  case  of  Snow  v. 
Roy,  (22  Wend.  602.) 

Motion  denied. 


BRIGGS  vs.  ALLEN  and  another. 

The  statute  (2  R.  S.  617,  §  26)  giving  costs  to  a  defendant  where  one  or  more  of 
several  issues  are  determined  in  his  favor,  and  the  others  in  favor  of  the  plaintiff, 
applies  only  to  cases  in  which  a  verdict  is  actually  rendered  for  the  defendant. 

Accordingly,  where  the  declaration  in  an  action  for  libel  contained  five  counts,  the 
third  relating  exclusively  to  a  charge  of  mal-practice  by  the  plaintiff  as  a  physi- 
cian and  surgeon,  and  most  of  the  others  relating  to  the  same  charge  in  con- 
nection with  other  libellous  matter,  to  the  whole  of  which  the  defendant  pleaded 
the  general  issue,  accompanied  by  a  notice  of  justification  as  to  the  charge  of 
mal-practice ;  and,  on  the  trial,  the  plaintiff  expressly  waived  all  claim  for  dama- 
ges on  account  of  such  charge,  BO  that  the  defendant  was  precluded  from  giving 
evidence  under  his  notice,  and  the  plaintiff  obtained  a  general  verdict :  Held, 
that  inasmuch  as  no  separate  verdict  was  rendered  for  the  defendant,  he  was 
not  entitled  to  the  costs  of  the  issue  upon  the  third  count. 

Independently  of  the  above  statute,  the  only  consequence  of  a  discontinuance  as  to 


ALBANY,  JUNE,  1842. 


BriggB  t>.  Alton. 


one  count  or  part  of  a  count,  is  to  deprive  the  plaintiff  of  costa  upon  the  matters 
thus  discontinued.    Per  NELSON,  Ch.  J. 

COSTS.  The  action  was  for  a  libel  upon  Briggs,  imputing  to 
him  various  instances  of  misconduct,  and,  among  others,  mal- 
practice as  physician  and  surgeon  for  the  Auburn  State  Prison, 
in  the  case  of  one  Van  Eck,  a  prisoner.  The  declaration  con- 
tained five  counts,  the  third  of  which  related  exclusively  to  the 
charge  of  mal-practice.  Most  of  the  remaining  counts  related 
to  that  charge  also,  but  connected  it  with  others,  sufficient  in 
themselves  to  sustain  the  action.  The  defendants  pleaded  the 
general  issue,  and  gave  notice  that  they  would  prove  the  truth 
of  what  was  alleged  in  the  libel  respecting  the  mal-practice  in 
the  case  of  Van  Eck.  On  the  trial,  the  plaintiff's  counsel  ex- 
pressly waived  all  claim  to  damages  upon  the  third  count,  and 
for  every  thing  contained  in  the  libel  relating  to  the  case  of 
Van  Eck  j  in  consequence  of  which  the  defendants  were  pro- 
hibited from  giving  evidence  to  support  their  notice  of  justifi- 
cation. The  defendants  did  not  ask  for  a  verdict  in  their  favor 
on  the  third  count,  and  a  general  verdict  was  rendered  for  the 
plaintiff  of  $300. 

J.  How,  for  the  defendants,  now  moved  that  they  be  allowed 
their  costs  of  defence  in  relation  to  the  third  cotmt.  He  read  affi- 
davits showing  the  above  among  other  facts,  and  that  the  defen- 
dants had  subpoenaed  many  witnesses,  who  were  in  attendance 
at  the  trial,  for  the  purpose  of  supporting  the  notice  of  justifi- 
cation. 

W.  T.  Worden,  contra. 

By  the  Court,  NELSON,  Ch.  J.  The  case  is  not  within  the 
statute.  (2  R.  S.  512,  §  27,  subd.  2,  2d  ed.)  The  provision 
contemplates  a  verdict  for  the  defendant  on  the  separate  count 
before  he  is  entitled  to  costs  against  the  plaintiff.  Indepen- 
dently of  this  section,  the  only  consequence  of  a  nolle  prosequ* 


540  CASES  IN  THE  SUPREME  COURT. 


Porter  v.  Mann. 


as  to  one  count  or  part  of  a  count  in  a  declaration,  is  to  de- 
prive the  plaintiff  of  costs  upon  the  matters  thus  discontinued. 
(2  Tiddj  888  ;  2  Arch.  281  j  Hubbard  v.  Biggs,  16  East,  129.) 

Motion  denied,  (a) 

(a)  See  The  People  v.  Feeter,  (12  Wend.  480 ;)  Wittis  v.  BatZey,  £c.  (19  Johns. 
Rep.  268.) 


POKTER  w.  MANN. 

An  affidavit  to  change  venue  stated  that  without  the  testimony  of  each  and  every 
of  the  witnesses  the  defendant  could  not  safely  proceed  to  the  trial,  without  add. 
ing  the  words,  of  this  cause  ;  yet,  held  sufficient. 

0.  Allen  moved  to  change  the  venue  in  this  cause  on  an 
affidavit  of  the  defendant  that  the  witnesses  were  each  and 
every  of  them  material  &c.,  and  that  without  the  testimony 
of  each  and  every  of  them  he  could  not  safely  proceed  to  the 
trial. 

D.  Burwellj  for  the  plaintiff,  objected  that  the  affidavit  was 
insufficient  in  not  stating  that  the  defendant  could  not  safely 
proceed  to  the  trial  of  this  cause.  But, 

BRONSON,  J.  held  the  affidavit  to  be  sufficient  j  saying,  that 
the  word  "  trial"  must  be  understood  as  referring  to  the  cause 
in  which  the  affidavit  was  made. 

Motion  granted,  (o) 

(a)  As  to  the  requisites  of  an  affidavit  to  change  venue,  see  the  note  to  Brittan  v 
Peabody,  (ante,  p.  64  to  66.) 


ALBANY,  OCTOBER,  1842.  541 

Van  Hovenburgh  o.  Case. 


VAN  HOVENBCRGH  vs.  CASE. 

When)  proceedings  instituted  under  the  third  section  of  the  non-imprisonment  act 
(Sess.  L.  '31,  p.  396)  arc  dismissed,  the  coats,  fees  and  expenses  for  which 
the  plaintiff  is  liable  to  the  defendant  can  in  no  case  be  taxed  at  a  sum  exceeding 
ten  dollar 8. 

The  statute  regulating  the  fees  of  attorneys  applies  only  to  suits  in  courts  of  record  ; 
and  hence,  such  fees  are  not  allowable  for  conducting  summary  proceedings  be- 
fore particular  officers.  Per  NELSON,  Ch.  J. 

TAXATION  of  costs.  In  July,  1842,  Van  Hovenburgh  sued 
Case  in  this  court,  on  a  demand  arising  upon  contract  amounting 
to  upwards  of  fifty  dollars.  After  the  commencement  of  the 
suit,  proceedings  were  instituted  against  the  defendant  before 
the  recorder  of  Schenectady,  under  the  "  act  to  abolish  impris- 
onment for  debt"  &c.  j  (Sess.  Laws  o/31,  p.  396,  §  3  to  10  ;) 
and,  after  a  hearing  before  that  officer,  the  complaint  was  dis- 
missed. The  defendant  thereupon  procured  his  costs  to  be 
taxed,  as  follows  :  Attorney's  fees,  $10.  Witnesses'  fees  and 
fees  for  serving  subpoena,  $17,47.  Recorder's  fees,  $24,37 
The  plaintiff  now  moved  for  a  re-taxation. 

Cochran  <$•  Rathbun,  for  the  motion. 
P.  Potter j  contra. 

By  the  Court,  NELSON,  Ch.  J.  The  non-imprisonment  act 
declares  that,  where  the  complaint  is  dismissed,  the  party 
making  it  "  shall  be  liable  for  all  fees  to  officers,  and  for  all 
costs  and  expenses  which  the  defendant  shall  have  incurred." 
(Sess.  Laws  o/'31,  p.  401,  ^  22  ;  1  R.  S.  812,  §  22,  2d  ed.) 
By  a  subsequent  act  (Sess.  Laws  of  '38,  p.  97,  §  3)  it  is  pro- 
vided that,  "  the  costs,  fees  and  expenses  &c.  shall  in  aJl  cases 
be  made  out  by^tating  the  particular  charges,  and  be  taxed  by 
the  officer  before  whom  such  proceedings  shall  be  had  ;  but  no 
counsel,  retaining  or  trial  fee,  shall  be  allowed  either  party  ; 


£42  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Wood. 

nor  shall  the  costs  in  any  case  [to]  be  taxed  against  the  opposite 
party  exceed  the  sum  of  ten  dollars  where  the  demand  claimed 
by  the  plaintiff  shall  exceed  fifty  dollars,  nor  more  than  five 
dollars  where  the  demand  claimed  by  the  plaintiff  shall  be  fifty 
dollars  or  less."  Upon  a  fair  construction  of  this  statute,  I  am 
satisfied  that  the  aggregate  amount  of  costs  and  expenses  taxa- 
ble against  the  complainant  cannot  exceed  ten  dollars. 

It  seems  to  be  supposed  that  the  amount  thus  limited  was 
intended  to  be  confined  to  the  fees  of  attorneys.  But  I  am  not 
aware  that  attorneys'  fees,  in  a  case  like  the  present,  can 
be  taxed,  or  that  there  is  any  law  authorizing  such  charges. 
The  fees  allowed  to  attorneys  by  statute  are  confined  to  suits 
in  courts  of  record.  (2  R.  S.  526,  §  18  ;  id.  528,  §  27  j  Sess. 
Laws  of  '40,  p.  327,  §  1  et  seq.)  They  have  never  been  allow- 
ed in  summary  proceedings  before  particular  officers,  where  the 
services  of  an  attorney,  as  such,  are  not  necessary,  far  any  per- 
son may  conduct  the  proceeding. 

Motion  granted,  (a) 

(a)  See  Potter  v.  Richards,  (10  Wend.  607.) 


Ex  parte  WOOD  and  others. 

To  entitle  a  judgment  creditor  to  redeem  lands  from  a  purchaser  at  a  sheriff's  sale, 
the  judgment  in  virtue  of  which  the  right  of  redeeming  ia  claimed  must  be 
against  the  defendant  in  the  writ  under  which  the  sale  took  place,  and  must 
also  be  a  lien  on  the  lands  sold. 

Judgments  having  been  obtained  against  R.  wfiich  were  a  lien  on  his  land,  he 
conveyed  to  P. ;  after  which  executions  were  issued,  and  the  lands  sold  by  the 
sheriff  to  W.  P.  then  conveyed  to  S.,  against  whom  and  R.  a  judgment  was 
obtained  by  M.  within  fifteen  months  from  the  sheriff's  sale,  and  M.  claimed 
the  right  to  redeem  on  paying  the  amount  of  W.'s  bid,  together  with  interest. 
Held,  however,  that  he  was  not  entitled  to  redeem. 

REDEMPTION  of  lands.     Previous  to  the  26th  of  Septem- 
ber, 1840,  three  judgments  were  obtained  in  this  court  in  favor  of 


ALBANY,  OCTOBER,  1842.  543 

Ex  parte  Wood. 

Wood  and  others,  plaintiffs,  against  Ramsdell,  defendant,  which 
judgments  were  docketed  and  became  liens  on  the  defendant's 
land  in  Genesee  county.  On  the  day  above  mentioned,  Rams- 
dell  conveyed  the  said  land  to  Pringle  &  Moore,  and,  on 
the  9th  of  January  thereafter,  it  -was  sold  by  the  sheriff  un- 
der executions  issued  upon  the  said  judgments,  to  the  plain- 
tiffs therein.  On  the  first  of  April  following,  Pringle  & 
Moore  sold  a  part  of  the  land  to  Rose  j  and,  on  the  6th  of  Jan- 
uary, 1842,  Mallory  obtained  a  judgment  against  Rose  and 
Ramsdell  before  a  justice  of  the  peace,  and  procured  the  same 
to  be  docketed  on  the  next  day  after  its  rendition.  By  virtue 
of  this  judgment,  Mallory  claimed  to  redeem  the  land  from 
the  sale  under  the  execution,  and,  on  the  9th  of  April,  1842, 
paid  to  the  sheriff  the  amount  for  which  it  had  been  sold, 
with  interest.  The  sheriff  thereupon  executed  a  deed  to 
Mallory,  as  a  redeeming  creditor,  and  refused,  after  the  expi- 
ration of  fifteen  months  from  the  day  of  sale,  to  execute  a  deed 
to  the  plaintiffs  in  the  execution.  This  motion  was  therefore 
made  in  their  behalf  for  a  mandamus  to  compel  the  sheriff  to 
execute  and  deliver  such  deeu- 

Dibble  (f  Martindale^  for  the  relators.  The  judgment  under 
which  a  creditor  may  redeem  must  possess  two  qualities,  viz. 
1.  It  should  be  a  lien  on  the  land ;  and  2.  It  should  be 
against  the  execution  debtor.  (2  R.  S.  371,  $  51.)  Mallory's 
judgment  had  neither  of  these  requisites.  Ramsdell  was  a 
defendant  in  it,  but  it  was  not  a  lien  on  the  land  as  against 
him,  for  he  had  conveyed  to  Pringle  and  Wood  before  the 
judgment  was  obtained.*  And  although  as  against  Rose  the 
judgment  was  a  lien  on  that  part  of  the  land  which  had  been 
previously  conveyed  to  him,  yet  he  was  not  the  individual 
against  whom  the  execution  issued  under  which  the  sale  took 
place.  Mallory  was  not,  therefore,  in  a  position  which  would 
enable  him  to  redeem  as  a  creditor  of  either  Ramsdell  or  Rose. 

B.  Pringle)  contra. 


544  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Paddock. 

By  the  Court,  NELSON,  Ch.  J.  I  am  of  opinion  the  counsel 
for  the  relators  are  right  in  their  exposition  of  the  statute,  and 
the  motion  must  therefore  be  granted. 

Ordered  accordingly. 


Ex  parte  PADDOCK. 

A  person  under  whose  execution  lands  have  been  sold  is  not  authorized  to  redeem 
in  virtue  of  the  judgment  on  which  the  execution  issued  either  from  the  purcha- 
ser or  a  creditor;  and  this,  though  no  part  of  the  proceeds  of  the  sale  were  re- 
alized upon  his  execution,  but  were  wholly  exhausted  by  other  and  prior  execu- 
tions under  which  the  property  was  sold  at  the  same  time. 

REDEMPTION  of  lands.  On  the  30th  of  December,  1840, 
two  lots  of  land  belonging  to  W.  &  M.  R.  Prince  were 
sold  by  the  sheriff  of  Queens  county  on  six  writs  of  fi. 
fa..  The  lots  were  sold  separately,  and  were  both  bid 
off  by  Peck  and  two  others.  On  payment  of  the  purchase 
money  the  sheriff  .executed  a  certificate  of  sale  in  the  usual 
form,  describing  the  executions  on  which  the  lots  were  sold  as 
follows :  Four  in  favor  of  the  New-York  Dry  Dock  Company 
against  W.  &  M.  R.  Prince,  tested  in  May,  1839,  "being  the 
oldest  and  first  in  hand" — one  in  favor  of  the  Hartford  and 
New-Haven  Rail  Road  Company,  against  the  same  defendants, 
tested  in  July,  1839,  and  one  in  favor  of  the  Branch  Bank  of 
the  state  of  Alabama,  against  the  same  defendants,  tested  No- 
vember 4th,  1839.  The  lands  were  s"old  for  a  sain  less  than 
the  amount  of  the  judgments  in  favor  of  the  Dry  Dock  compa- 
ny. On  the  15th  of  November,  1839,  Paddock  obtained  a 
judgment  against  the  same  defendants,  and,  on  the  30th  of 
March,  1842,  the  land  not  having  been  redeemed  within  a  year 
from  the  sale,  he  paid  to  the  sheriff  the  amount  of  the  pur- 
chase money  received  by  him  from  Peck  and  others,  with  in- 


ALBANY,  OCTOBER,  1843.  545 

Ex  parto  Paddock. 

terest,  and  claimed  to  be  entitled  to  a  deed  of  the  land.  The 
judgment  in  favor  of  the  Hartford  and  New-Haven  Rail  Road 
Company,  which  was  recovered  in  July,  1839,  was  assigned  to 
Peck  and  others  (ihe  purchasers)  before  the  month  of  Octo- 
ber, 1840  ;  and,  on  the  same  day  that  Paddock  made  the  afore- 
said payment  to  the  sheriff,  Peck  and  others,  as  such  assignees, 
refunded  the  same,  and  insisted  that  the  sheriff  was  bound  to 
execute  to  them  a  deed  of  the  lands  sold  by  him  in  virtue  of 
the  said  executions.  The  sheriff  declined  executing  a  deed  to 
either  Paddock  or  the  purchasers,  being  in  doubt  as  to  who 
was  entitled  thereto.  This  motion  was  therefore  made,  in  be- 
half of  Paddock,  for  a  mandamus  to  compel  the  sheriff  to  exe- 
cute a  deed  to  him. 

Edmonds  8f  Buckham^  for  the  motion. 
C.  V.  S.  Kane,  contra. 

By  the  Court  j  NELSON,  Ch.  J.  As  the  judgment  of  which 
Peck  and  others  are  assignees  is  older  than  the  one  in  fayor 
of  Paddock,  the  former  would  be  entitled -to  a  deed  from  the 
sheriff  were  it.  not  that  their  execution  is  one  of  those  under 
which  the  sale  was  made.  The  statute  provides,  that  "  the 
plaintiff  under  whose  execution  any  real  estate  shall  have  been 
sold,  shall  not  be  authorized  to  acquire  the  title  of  the  origi- 
nal purchaser,  or  of  any  creditor,  to  the  premises  so  sold  by 
virtue  of  the  decree  or  judgment  on  which  such  execution  is- 
sued." (2  R.  S.  373,  §  58.)  It  is  insisted  in  behalf  of  the 
assignees  of  the  judgment,  that  their  right  to  a  deed  is  not  af- 
fected by  the  statute,  inasmuch  as  no  part  of  the  purchase  mo- 
ney was  applied  on  their  judgment.  But  the  statute  is  ex- 
plicit, and  contains  no  exception  in  favor  of  such  a  case.  In 
order  to  have  secured  the  payment  of  the  judgment,  the  pur- 
chasers should  have  bid  more  for  the  land ;  or,  if  they  had  de- 
sired a  deed  from  the  sheriff,  they  should  have  withdrawn  their 

VOL.  IV.  69 


546  CASES  IN  THE  SUPREME  COURT. 

Dockstader  v.  Sammons. 

execution  before  the  sale,  and  thus  put  themselves  in  a  situa- 
tion to  demand  the  deed  on  refunding  the  purchase  money  paid 
by  a  junior  judgment  creditor. 

Motion  granted. 


DOCKSTADER  vs.  SAMMONS. 

Though  a  public  officer  against  whom  a  judgment  has  been  obtained  for  an  act 
done  by  virtue  of  his  office  brings  error  and  reverses  the  judgment,  he  is  not  en- 
titled to  double  costs  upon  the  writ  of  error. 

DOUBLE  costs.  Dockstader,  a  constable,  having  taken  certain 
goods  in  execution,  Sammons  brought  replevin  for  them  in  the 
Montgomery  C.  P.,  and  recovered  judgment.  Dockstader 
sued  out  a  writ  of  error,  whereupon  this  court  reversed  the 
judgment ;  and  now 

5.  Stevensj  for  the  plaintiff  in  error,  moved  for  double  costs 
upon  the  writ  of  error,  on  the  ground  that  the  suit  was  for  an 
act  done  by  the  plaintiff  in  error  (the  defendant  below)  in 
virtue  of  his  office  as  constable. 

JV.  Hill,  Jr.  contra. 

COWEN,  J.  I  am  of  opinion  that  the  statute  relating  to 
double  costs  in  suits  against  public  officers  (2  .ft.  S.  617,  §  24, 
subd.  1)  does  not  apply  to  a  case  of  this  kind.  The  provision 
is,  that  double  costs  may  be  recovered  by  the  defendant,  where 
judgment  is  rendered  in  his  favor  upon  verdict,  demurrer,  writ 
of  error  &c.  Here  the  plaintiff  in  error — not  the  defendant — 
asks  for  double  costs.  My  recollection  is  that  this  question 
was  passed  upon  by  the  court  some  time  ago. 

J.  W.  Jenkins,  (ut  amicus  curia,)  observed,  that  a  similar 


ALBANY,  FEBRUARY,  1848.  547 

Barber  v.  The  West  Stockbridge  Rail  Road  Company. 

motion  was  made  In  the  case  of  Harp  v.  Stuart  about  three 
years  since,  and  denied. 

COWEN,  J.  That  is  probably  the  case  to  which  I  referred. 
I  think  it  was  submitted  to  all  the  judges  in  consultation,  and 
that  we  concurred  in  denying  the  motion  for  the  reasons  al- 
ready stated. 

Motion  denied. 


BARBEE  vs.  THE  WEST  STOCKBRIDGE  RAIL  ROAD  COMPANY. 

A  charge  for  drawing  and  copying  a  bill  of  particulars  is  not  taxable  in  suits  com- 
menced since  the  act  of  May  14th,  1840. 

So  as  to  a  charge  for  a  copy  of  the  pleadings  to  be  used  by  referees,  the  cause 
having  been  referred. 

RE-TAXATION  of  costs.  The  suit  was  commenced  after  the 
act  of  May  14th,  1840  (Sess.  L.  '40,  p.  327)  went  into  effect, 
and  the  plaintiff  obtained  a  report  of  referees  in  his  favor. 
The  following  items  were  charged  and  allowed  by  the  taxing 
officer,  viz.  "Dr.  bill  of  particulars,  delivered  in  pursuance  of  a 
judge's  order,  $2,50 :  Two  copies,  $3,00 :  Copy  pleadings  for 
referees,  $3,00."  The  defendant's  counsel  having  objected  be- 
fore the  officer  to  the  allowance  of  these  charges,  now  moved 
for  a  re-taxation. 

JVf.  T.  Reynolds,  for  the  motion. 

JV.  Hill,  Jr.,  contra. 

By  the  Court,  COWEN,  J.  We  think  the  charges  objected 
to  were  improperly  allowed  by  the  taxing  officer.  The  act  of 
1840  (Sess.  Laws  of  '40,  p.  327)  contains  no  provision  allow- 
ing compensation  for  such  services. 

Motion  granted. 


548  CASES  IN  THE  SUPREME  COURT. 


Wood  t».  Crowner. 


WOOD  vs.  CROWNEB. 

An  affidavit  on  which  to  move  for  a  reference,  must,  in  general,  be  made  by  the 

party,  and  not  the  attorney. 
Otherwise,  if  a  sufficient  excuse  appear  for  dispensing  with  the  affidavit  of  the 

party.    Semble. 

B.  R.  Wood,  for  the  plaintiff,  moved  for  a  reference  on  an 
affidavit  sufficient  in  all  respects  except  that  it  was  sworn  to  by 
the  attorney,  and  furnished  no  reason  why  it  was  not  made 
by  the  party.  Whereupon, 

D.  Burwell,  contra,  objected  that  the  affidavit  was  insuffi- 
cient. 

By  the  Court,  COWEN,  J.  The  affidavit  should  have  been 
made  by  the  plaintiff,  or  a  sufficient  excuse  given  for  the  omis- 
sion. The  motion  must  be  denied. 

Ordered  accordingly,  (a) 


(o)  As  to  affidavits  on  which  to  move  for  or  oppose  a  change  of  venue,  see  the 
note  to  Brittan  v.  Peabody,  (ante,  p.  64,  pi.  4 ;  p.  69,  pi.  9.)  And  see  Bird  and 
others  v.  Moore  and  others,  (3  Hill,  447,)  as  to  affidavits  on  which  to  move  for 
judgment  as  in  case  of  non-suit. 


ALBANY,  FEBRUARY,  1843.  549 

Mill*  T.  Lee. 


MILLS  vs.  LEE  and  others. 

In  actions  ex  contraetu,  a  separate  verdict  in  favor  of  one  of  several  defendants, 
though  grounded  on  his  discharge  as  a  bankrupt,  will  not  render  him  competent 
to  testify  for  his  co-defendants. 

MOTION  to  set  aside  inquest  and  subsequent  proceedings. 
Mills  sued  Wells,  N.  P.  Lee  and  W.  M.  Lee  on  a  promissory 
note.  Wells  and  N.  P.  Lee  pleaded  non-assumpsit,  and  the 
latter  gave  notice  of  his  discharge  as  a  bankrupt  since  the  ma- 
king of  the  note.  W.  M.  Lee  suffered  default  to  be  entered 
against  him  for  want  of  a  plea.  At  the  circuit.  Wells  moved 
to  put  off  the  trial  of  the  cause  on  an  affidavit  that  his  co-de- 
fendant, N.  P.  Lee,  was  a  material  witness  &c.,  that  he  was  ab- 
sent from  the  state,  and  that  he  had  been  discharged  as  a  bank- 
rupt. The  judge  denied  the  motion,  for  the  reason  that  N.  P. 
Lee  if  present,  could  not  be  used  as  a  witness  for  his  co-de- 
fendant, and  that  even  a  verdict  in  his  favor  grounded  on  his 
bankrupt  discharge  would  not  render  him  competent.  No  affi- 
davit of  merits  having  been  filed,  an  inquest  was  taken  against 
Wells,  which  he  now  moved  to  set  aside.  ' 

S.  Stevens,  for  the  motion. 
S.  J.  Cowen,  contra. 

By  the  Court,  COWEN,  J.  The  judge  was  clearly  right  in 
refusing  to  postpone  the  cause.  There  can  be  no  doubt  that, 
in  actions  ex  contractu,  a  verdict  in  favor  of  one  of  several  de- 
fendants, though  on  the  ground  of  bankruptcy,  will  not  render 
him  a  competent  witness  for  his  co-defendant.  (3  Hill,  106, 
7,  note,  and  the  cases  there  cited.) 


550  CASES  IN  THE  SUPREME  COURT. 


Cowles  v.  Coster. 


COWLES  VS.  COSTEB. 

Where  a  replication  was  filed  and  served,  to  which  the  defendant  interposed  a 
rejoinder ;  held,  that  the  plaintiff  had  no  right  to  file  and  serve  an  amended  re- 
plication of  course,  and  that,  having  done  so,  the  defendant  might  treat  it  as  a 
nullity. 

AMENDMENT.  The  plaintiff  filed  and  served  a  copy  of  his 
replication  on  the  llth  of  October  last,  with  notice  to  rejoin. 
The  defendant  rejoined  on  the  21st  of  November.  Nearly  two 
months  after,  the  plaintiff  filed  and  served  an  amended  replica- 
tion as  of  course,  with  notice  to  rejoin.  This  the  defendant's 
attorney  refused  to  receive  ;  and  a  motion  was  now  made  to 
set  it  aside  as  irregular,  on  the  ground  that,  by  the  23d  rule 
authorizing  amendments  of  course,  no  pleading  subsequent  to 
the  declaration  is  thus  amendable  after  it  has  been  answered. 

H.  H.  Martin ,  for  the  motion,  cited  Bleecker  v.  Bellinger, 
(11  Wend.  179.) 

i 
,  contra,  cited  Grah:  Pr.  657,  2d  ed. 

By  the  Court,  COWEN,  J.  The  23d,  rule  is  that,  after  plea, 
either  party  may,  before  default  for  nut  answering  shall  be  en- 
tered, amend  the  pleading  to  be  answered.  The  rule  does  not 
extend  to  a  pleading  already  answered.  But  there  was  no 
need  of  this  Tnotion.  The  course  for  the  defendant  was  to 
treat  the  amended  replication  as  a  nullity. 

Motion  denied. 


ALBANY,  FEBRUARY,  1843. 


Hughes  t>.  Bywater. 


HUGHES  vs.  BYWATEB. 

Where  a  bond  of  submission  to  arbitrators  contained  a  stipulation  that,  in  case  the 
award  was  not  paid  or  fulfilled,  judgment  for  the  penalty  of  the  bond  might  be 
forthwith  entered  up  in  the  supreme  court ;  held,  that  the  prevailing  party  was 
at  liberty  to  perfect  judgment  in  vacation  immediately  after  the  award,  without 
a  special  motion  to  the  court. 

JUDGMENT  on  award.  The  parties  signed  and  sealed  a  gen- 
eral submission  of  their  differences  to  three  arbitrators,  who 
made  an  award  in  favor  of  Hughes.  Upon  this,  judgment  was 
immediately  perfected  in  vacation,  (a  rule  of  course  being 
entered,)  pursuant  to  the  following  stipulation  contained  in 
the  instrument  of  submission  :  "  It  is  hereby  mutually  agreed 
that,  in  case  the  said  award  is  not  paid  or  fulfilled  ac- 
cording to  the  terms  of  this  agreement,  by  the  person  who 
shall  be  bound  to  pay  or  perform  the  said  award,  a  judgment 
in  the  supreme  court  of  judicature  of  the  people  of  the  state 
of  New  York,  for  the  above  penalty  of  $200,  shall  be  forth- 
with entered  up ;  and  that  an  execution  holding  the  body  of  the 
defendant,  in  case  he  has  not  personal  property  sufficient  to 
satisfy  said  award,  shall  be  forthwith  issued  on  said  judg- 
ment." 

W.  M.  Allen,  for  the  defendant,  moved  to  set  aside  the 
award  and  subsequent  proceedings  on  affidavits  detailing  the 
above  facts,  and  others,  tending,  as  he  urged,  to  impeach  the 
proceedings  of  the  -arbitrators.  He  insisted,  especially,  that 
no  judgment  could  be  entered  except  on  motion,  pursuant  to 
the  provisions  of  2  R.  S.  447,  448,  §  9,  14,  2d  ed.  He  cited 
Anonymous,  (5  Wend.  102  j)  Anonymous,  (6  id.  520  j)  Wells  v. 
Lain,  (15  id.  99,  103  ;)  Farrington  v.  Hamblin,  (12  id.  212  j) 
Emmett  v.  Hoyt,  (17  id.  410.) 

W.  F.  Mien,  contra,  insisted  that  the  affidavits  failed  to  im- 
peach the  award  on  the  merits  j  and  to  this 


552  CASES  IN  THE  SUPREME  COURT. 

Hughes  v.  Bywater. 

Co  WEN,  J.  agreed,  and  said  the  only  question  fairly  arising 
in  the  case  was  as  to  the  regularity  of  the  judgment. 

On  this  question  the  counsel  cited  Farrington  v.  Hamblin, 
(12   Wend.  212  ;)   Yates  v.  Russell,  (17  John.  R.  461,  465.) 


By  the  Court,  Co  WEN,  J.  If  a  party  will  confess  a  judgment 
upon  an  award  or  any  other  instrument,  or  will  authorize  an- 
other to  do  so  in  his  name,  I  know  of  nothing  either  in  the 
common  or  statute  law  to  disable  him.  Judgments  are  every 
day  entered  on  warrants  of  attorney  without  special  motion, 
and  the  stipulation  in  this  instrument  of  submission  is  the  same 
thing  as  if  it  had  expressly  authorized  the  entry  of  judgment 
by  an  attorney.  It  is  virtually  saying  to  the  plaintiff,  "  if  the 
award  be  against  me,  I  waive  my  right  to  insist  on  a  special 
motion."  The  statute  requiring  that  step  was  for  the  defen- 
dant's benefit ;  and  he  might,  therefore,  waive  it.  An  agree- 
ment to  arbitrate  discontinues  a  cause.  Yet  the  defendant  may 
confess  judgment  upon  the  award  ;  and  shall  not  then  be  heard 
to  allege  irregularity.  Consent  that  judgment  should  be  en- 
tered was  held  to  bind  him  in  Yates  v.  Russell,  (17  JoAn.  461,) 
and  Farrington  v.  Hamblin,  (12  Wend.  212.)  These  cases 
were  no  more  than  the  present — a  consent  that  judgment  should 
follow  the  award.  This  consent  derived  no  strength  from  the 
fact  that  suits  had  been  brought ;  for  the  proceeding  was  out 
of  the  cause.  Such  consent  is  an  authority  to  do  whatever  is 
necessary  to  effect  the  object  of  the  stipulation  ;  among  other 
things,  to  appear  for  the  defendant,  or  retain  an  attorney  to  ap- 
pear for  him.  He  thus  gives  jurisdiction  over  his  person  with- 
out formal  process  ;  and  the  court  already  has,  by  law,  juris- 
diction of  the  subject  matter.  I  am  aware  of  no  rule  disabling 
a  man  to  provide  that  judgment  may  be  entered  on  a  cause  of 
action  to  arise  infuturo,  any  more  than  upon  a  cause  subsisting 
at  the  time. 

Again,  the  plaintiff  is  authorized  to  take  his  judgment  by  the 


ALBANY,   FEBRUARY,   1843.  553 

Hughes  r.  Bywater. 

defendant's  own  agreement,  who  should  therefore  be  holden 
estopped  to  question  it.  He  has  led  the  plaintiff  to  rely  on  a 
judgment  of  course,  and  the  latter  may  be  injured,  indeed  must 
be  to  a  certain  extent,  if  we  set  the  judgment  aside.  The  cases 
I  have  cited  therefore  held  the  defendants  to  the  judgment  on 
the  ground  of  estoppel,  among  other  grounds.  This  was  es- 
pecially adverted  to  in  Yates  v.  Russell. 

I  am  aware  that  another  statute  has  manifested  some  degree 
of  jealousy  against  summary  confessions  of  judgment,  by  re- 
quiring that  the  warrant  should  be  on  a  separate  sheet  j  (1  R. 
L.  501,  §  5  ;  2  R.  S.  283,  §  10,  2d  ed.  ;)  but  this  proceeding 
is  not  questioned  upon  that  statute,  nor  was  it  deemed  applica- 
ble in  the  cases  cited.  The  ctse  is  not  one  of  a  general  war- 
rant of  attorney,  but  comes  under  the  head  of  arbitration  and 
judgment — a  statute  mode  of  determining  controversies  with  the 
same  effect  as  an  ordinary  suit.  Strictly, it  must  be  carried  on 
in  a  prescribed  form  j  among  others,  a  motion  in  court.  So  in 
ordinary  suits,  certain  formalities  are  necessary ;  but  the  de- 
fendant may  waive  any  of  them,  even  the  most  important,  a 
trial  for  instance  ;  and,  by  himself  or  another  duly  authorized, 
consent  to  the  judgment  in  a  form  less  cautious.  No  rule  of 
general  policy  forbids  it  more  in  the  amicable  suit  by  arbitra- 
tion, than  in  any  other. 

Motion  denied. 


VOL.  IV.  70 


554  CASES  IN  THE  SUPREME  COURT. 

Gould  v.  Root. 


GOULD  and  others  vs.  ROOT  and  others. 

If  an  order  of  a  judge  or  commissioner  be  revoked  by  him,  a  subsequent  ap- 
plication to  another  commissioner,  in  reference  to  the  same  matter,  and  in  the 
same  stage  of  the  proceedings,  is  irregular ;  for  a  revocation  is  in  effect  the  same 
thing  as  an  original  refusal. 

The  order  of  a  judge  or  commissioner  cannot  be  treated  as  a  nullity  on  the  mere 
ground  of  its  having  been  improperly  or  even  fraudulently  obtained ;  the  remedy 
of  the  party  in  such  case  being  by  appeal,  motion  to  supersede,  application  to 
revoke  &c. 

After  notice  of  hearing  before  referees  had  been  given  by  the  plaintiff,  the  defen- 
dant obtained  an  order  staying  proceedings  till  a  motion  for  a  commission  could 
be  made  to  a  circuit  judge;  the  motion  ^being  noticed  for  a  day  subsequent  to 
that  appointed  for  the  hearing.  The  order  was  afterwards  revoked,  on  the  plain- 
tiffs application,  and  notice  thereof  given  to  the  defendant's  attorney,  who  there- 
upon applied  to  a  commissioner  residing  in  another  county,  and  obtained  an  or 
der  staying  proceedings  for  the  purpose  of  moving  the  court  to  set  aside  the  or- 
der of  revocation.  The  plaintiff's  attorney  treated  the  commissioner's  order  as  a 
nullity,  proceeded  to  a  hearing  of  the  cause,  and  obtained  a  report  in  his  favor. 
Held,  on  the  defendant's  motion  to  set  aside  the  report,  that  though  the  order  of 
the  commissioner  was  irregular,  the  plaintiff  had  no  right  to  treat  it  as  a  nullity ; 
and  the  motion  was  therefore  granted,  but  without  costs. 

MOTION,  in  behalf  of  the  defendants,  to  set  aside  a  report  of 
referees  in  favor  of  the  plaintiffs.  The  motion  was  made  on 
the  ground,  (inter  alia)  that  the  plaintiffs  had  proceeded  to  a 
hearing  and  report  contrary  to  a  commissioner's  order  staying 
proceedings.  The  venue  was  laid  in  the  city  and  county  of 
New-York,  the  defendants  residing  in  Herkimer  county.  The 
cause  was,  at  the  last  December  special  term,  referred  to  ref- 
erees in  New-York  ;  and,  on  the  19th  of  December,  the  plain- 
tiffs' attorney  gave  notice  of  hearing  for  the  3d  of  January. 
On  the  23d  of  December,  the  defendants  made  an  affidavit  upon 
•which  to  move  for  a  commission  on  the  14th  day  of  January, 
before  GRI'DLEY,  C.  Judge,  and  obtained  an  order  from  the 
first  judge  of  Oneida  county,  dated  the  23d,  staying  proceed- 
ings till  the  motion  should  be  made.  This  being  served  on 
the  plaintiffs'  attorney,  he,  on  the  27th  of  December,  applied 


ALBANY,  FEBRUARY,  1843.  555 


Gould  t.  Root 


to  the  first  judge,  who,  on  the  ground  of  laches  by  the  defen- 
dants, made  an  order  revoking  the  order  to  stay.  On  receiv- 
ing notice  of  the  revocation,  and  upon  an  affidavit  of  the  above 
facts,  the  defendants'  attorneys  applied  to  a  supreme  court 
commissioner  in  Herkimer  county,  who,  on  the  29th  of  De- 
cember, made  an  order  staying  the  plaintiffs'  proceedings  until 
a  motion  could  be  made  at  the  present  term  to  set  aside  the 
order  of  revocation.  This  order  of  the  commissioner  was  serv- 
ed, with  notice  of  motion,  on  the  31st  of  December.  The 
plaintiffs'  attorney  disregarded  the  order  of  the  29th  as  a  nulli- 
ty, proceeded  to  a  hearing  before  the  referees,  and  obtained  a 

report,  which 

. 

D.  Burwell  now  moved  to  set  aside  on  the  ground  of  irregu- 
larity.  He  also  moved  for  a  commission,  the  original  motion 
for  that  purpose  having  been  denied  by  Judge  Gridley.  On 
an  affidavit  of  merits,  he  also  moved  to  be  let  in  on  terms 
should  the  court  be  against  him  on  the  question  of  regularity. 

J.  W.  Jenkins ,  contra. 

By  the  Court,  COWEN,  J.  Under  the  circumstances,  I  feel 
no  inclination  to  relieve  the  defendants  on  the  ground  of  mer- 
its. Upon  the  facts  disclosed,  I  entertain  no  doubt  that  the 
first  judge  was  right  in  revoking  the  order  to  stay  the  proceed- 
ings ;  nor  that  the  subsequent  order  obtained  from  the  com- 
missioner was  irregular.  The  only  question  is,  whether  it  was 
a  nullity.  The  statute  declares  that  the  order  being  refused  in 
whole  or  in  part,  no  subsequent  application  in  reference  to  the 
same  matter  and  in  the  same  stage  of  the  proceedings  shall  be 
made  to  any  other  supreme  court  commissioner  ;  and  if  an  or- 
der be  made  by  the  latter,  it  shall  be  revoked  by  him  or  by  a 
justice  of  this  court  Or  circuit  judge,  on  due  proof  of  the 
facts.  (2  R.  S.  209,  210,  §  27,  2d  ed.)  Section  twenty-eight 
forbids  a  second  application  under  a  penalty.  To  say  that  an 
order  may  be  thus  obtained  under  pretence  of  an  appeal  from 


556  CASES  IN  THE  SUPREME  COURT. 

Gould  v.  Root. 

or  a  motion  to  set  aside  the  order  of  revocation,  would  let  in 
the  means  of  evading'  the  statute.  A  revocation  is,  in  effect, 
the  same  thing  as  an  original  refusal. 

Must  such  an  irregular  and  evasive  order  be  obeyed  till  it  is 
revoked  1  Revocation  is  the  remedy  to  which  the  statute 
looks,  in  terms  ;  and  there  is  great  question  whether,  in  prin- 
ciple, the  course  here  taken  was  warranted.  The  only  cases 
in  which  the  statute  authorizes  a  total  disregard  of  the  order  are 
specified  in  the  25th  and  26th  sections.  (2  R.  S.  209, 2d  ed.) 
And  I  am  not  aware  of  any  principle  which  authorizes  a  party 
to  treat  an  order  as  a  nonentity  merely  because  a  commission- 
er is  forbidden  to  grant  it  or  a  party  is  forbidden  to  apply  for 
it.  It  may  be  said  of  every  order  improvidently  granted  that 
the  party  and  officer  have  done  what  the  law  has  forbidden. 
To  say  that  it  has  been  fraudulently  and  collusively  obtained  is 
no  more.  But  to  allow  as  a  consequence  that  it  may  there- 
fore be  disregarded,  would  be  letting  in  a  principle  under 
which  every  judicial  act  might  be  questioned  collaterally. 
The  remedy  is  by  direct  proceeding,  which,  in  the  case  of  or- 
ders, is  revocation,  appeal,  motion  to  supersede,  &c.  (See  Jack- 
son, ex  dem.  Dox,  v.  Jackson,  3  Cowen,  73  j  Lyon  v.  Burtis, 
4  id.  538  ;  Case  v.  Shepherd,  1  John.  Cas.  245  ;  Wright  v. 
Stevenson,5  Taunt.  850.)  (a)  Until  this  is  taken,  or  the  order 
expires  by  its  own  limitation,  the  party  must  submit  to  it. 
This  we  held  in  Starr  v.  Francis,  (22  Wend.  633,)  a  case  no 
way  distinguishable  from  the  present  on  principle.  In  doing 
so  we  did  but  follow  out  the  rule  long  ago  settled  by  the 
courts  at  Westminster  Hall.  In  Rex  v.  Wilkes,  (4  Burr. 
2-571,)  Yates,  J.  said,  "  The  order  of  a  judge  is  subject  to  an 
appeal  to  the  court ;  but  if  acquiesced  under,  it  is  as  valid  as 
any  act  of  the  court ;"  though,  to  enforce  it  by  attachment,  it 
must  first  be  made  a  rule  of  court.  He  added,  "  the  validity 
of  a  judge's  order  can  be  impeached  in  only  two  ways ;  either 
by  appealing  to  the  court  to  set  it  aside  j  or,  if  made  in  vaca- 

(a)  See  Hart  v.  Butterfield,  (3  HUl,  455.) 


ALBANY,  FEBRUARY,  1843.  557 


Gould  r.  Root 


tion,  by  applying  at  the  next  term  to  set  aside  the  proceedings 
that  have  been  had  under  it."  (Mansfield,  C.  J.  in  Wood  v. 
Plant,  1  Taunt.  47,  S.  P.)  This  effect  of  an  order,  and  the 
remedy  when  it  has  been  improperly  granted,  was  recognized 
here  in  Roosevelt  v.  Gardinier,  (2  Cowen,  463,  4.)  We  often 
allow  the  fraudulent  act  of  the  party  or  his  agents,  done  for 
the  purpose  of  delaying  the  cause,  to  be  treated  as  nullities. 
(Anonymous,  22  Wend.  619  ;  Bank  of  Buffalo  v.  Lowry,  id. 
630.)  (a)  But  fraud,  even  by  the  party,  in  obtaining  a  judicial 
decision,  is  another  matter.  If  inter  alios,  it  may  be  impeach- 
ed collaterally.  A  familiar  instance  is  a  judgment  confessed 
to  defraud  creditors.  But  the  reason  for  that  has  no  applica- 
tion to  any  judicial  act,  interlocutory  or  final,  between  parties 
to  a  pending  cause.  With  regard  to  orders  especially,  con- 
sidering the  summary  remedies  at  hand — revocations  by  com- 
missioners, and  motions  at  the  special  terms,  which  under  our 
system  are  of  very  frequent*recurrence — no  great  delay  can 
in  general  arise  from  holding  the  party- to  the  ordinary  reme- 
dy. These  orders  are  exceedingly  numerous  ;  and  if  we  per- 
mit them  to  be  disregarded  in  the  hope  that  a  case  of  evasion 
or  fraud  may  be  shown,  parties  will  often  take  their  chance 
with  the  advantage  they  enjoy  of  an  ex  parte  case  resting  on 
opposing  affidavits.  .  The  general  force  of  such  orders  will  be 
greatly  weakened.  A  new,  inconvenient  and  unsafe  mode  of 
litigation  will  be  opened.  Among  other  things,  we  shall  be 
continually  asked  to  infer  fraud  from  the  weakness  of  the  case 
made  out  before  the  commissioner.  Such  things  are  proper  in 
the  direct  method  ;  but  we  cannot  allow  that  the  party  shall 
bring  an  appeal  to  himself,  and  cast  the  onus  of  appealing 
from  his  own  decision  to  us,  upon  his  adversary. 

The  motion  to  set  aside  the  report  is  granted,  but  without 
costs. 

The  motion  for  a  commission  is  also  granted ;  but  that  is 

not  to  operate  as  a  stay  of  proceedings. 

Rule  accordingly. 

(6)  See  Anonymout,  (ante, p.  56.) 


558  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Green  &  Brown. 


Ex  parte  GREEN  &  BROWN. 

Superindendent1'  of  the  poor  are  not  bound  to  audit  the  accounts  of  physicians  and 
others  for  services  rendered  to  county  paupers  by  request  of  the  overseers  of  the 
poor  of  the  several  towns ;  and  this,  though  the  services  were  rendered  in  pur- 
euance  of  orders  for  temporary  relief. 

It  is  the  duty  of  the  overseers  to  adjust  such  accounts  and  charge  them  in  their 
bills  against  the  county. 

The  employment  of  a  physician  by  the  superintendents  of  the  poor  of  a  county 
does  not  supersede  the  right  of  the  overseers  of  the  several  towns  to  employ  other 
physicians  to  attend  county  paupers  entitled  to  temporary  relief.  Semble ;  per 
COWEN,  J. 

THE  relators,  who  were  physicians,  had,  at  the  request  of  an 
overseer  of  the  poor  of  the  town  of  Little  Falls,  in  Herkimer 
county,  rendered  professional  services  to  several  paupers,  some 
of  whom  were  entitled  to  temporary  relief  pursuant  to  orders 
obtained  for  that  purpose  under  1  JR.  *S.  633,  §  46,  2d  ed. 
The  distinction  between  town  and  county  poor  did  not,  at  the 
time,  exist  in  Herkimer.  The  relators  presented  their  accounts 
to  the  superintendents  of  the  poor  of  the  county,  who  refused 
to  audit  them  ;  and,  as  to  some  of  them,  would  not  receive  and 
take  them  into  their  consideration,  even  where  the  services 
were  duly  rendered  pursuant  to  the  order  of  a  justice  of  the 
peace.  The  refusal  of  the  superintendents  was  put  upon  the 
ground  that  they  had  themselves  employed  a  physician  to  act 
in  all  cases. 

M.  T.  Reynolds,  for  the  relators,  moved  for  a  mandamus 
commanding  the  superintendents  to  audit. 

D.  Burwell,  contra. 

By  the  Court,  COWEN,  J.  It  is  unnecessary  to  say  whether 
the  employment  of  a  physician  by  the  superintendents  super- 
seded the  right  of  the  overseers  of  the  poor  to  employ  other 


ALBANY,  FEBRUARY,  1843.  559 

Grave*  t>.  Woodbury. 

physicians  in  local  cases  arising  under  the  46th  section  of  the 
statute  j  (1  R.  S.  633,  2d  ed.  j)  though  it  strikes  me  not. 
However  that  may  be,  I  think  it  entirely  clear  that  the  super- 
intendents are  bound  to  do  no  more  under  that  section  than 
audit  the  account  of  the  overseer  himself  against  the  county, 
for  any  sum  paid  or  contracted  to  be  paid  by  him.  The  62d 
section,  (id.  p.  636,)  requiring  the  superintendents  to  audit  and 
allow  all  accounts  of  overseers  of  the  poor,  justices  of  the 
peace  and  all  other  persons,  for  services  relating  to  the  support, 
relief  or  transportation  of  county  paupers,  can  have  full  ope- 
ration without  requiring  the  audit  and  allowance  of  accounts  in 
favor  of  individuals  dealing  with  the  overseers  in  the  several 
towns.  Such  accounts  may  be  very  numerous,  and  occasional- 
ly very  trifling  j  and  it  is  peculiarly  fit  that  they  should  first 
be  adjusted  by  the  overseer,  and  charged  by  him  in  general  ac- 
counL 

Motion  denied. 


J.  GRAVES  vs.  WOODBURY. 
J.  &  D.  GRAVES  vs.  WOODBURY. 

11  A.  recover  judgment  against  C.,  and  the  latter  obtain  judgment  against  A.  and 
B.,  a  set-off  may  be  ordered  on  the  application  of  A.,  notwithstanding  the  ob- 
jection that  the  parties  to  both  records  arc  not  identical  Per  COWEN,  J. 

The  order  will  be  made  though  it  appear  that  the  judgment  in  C.'B  favor  has  been 
assigned  to  a  third  person,  for  a  valuable  consideration,  and  without  notice  of 
the  existence  of  the  other  judgment.  Per  COWEN,  J. 

Otherwise,  however,  if  the  right  of  set-off  did  not  exist  at  the  time  of  the  assign, 
merit 

Accordingly,  A.  having  recovered  judgment  against  C\  a  suit  was  commenced  by 
A.  and  B.  against  C.,  which  was  referred  ;  and,  a  short  time  before  the  making 
of  the  referee's  report,  which  fonnd  a  large  balance  due  to  C.,  but  after  the 
referee  had  heard  the  matter  and  C.  had  ascertained  what  the  report  would  bo, 
he  assigned  the  demand  to  D.  for  a  valuable  consideration,  and  judgment  WM 
duly  perfected  upon  the  report :  Held,  that  A.  was  not  entitled  to  a  set-off,  ina*. 
much  as  no  such  right  existed  when  the  assignment  waa  made ;  the  judgment  in 
C.'s  favor  having  been  perfected  afterwards. 


560        CASES  IN  THE  SUPREME  COURT. 

2BB 

Graves  v.  Woodbury. 

SET-OFF  of  judgments.  In  the  first  entitled  cause  the  plain- 
tiff obtained  judgment  for  $1562,75  on  the  2d  of  July,  1838. 
In  the  other  cause,  judgment  was  rendered  for  the  defendant 
on  the  report  of  a  referee  for  $1235,49  on  the  7th  of  Novem- 
ber, 1842.  Jacob  and  Daniel  Graves  were  partners,  having  a 
joint  interest  in  the  subject  matter  of  the  second  suit ;  but,  be- 
fore the  commencement  of  the  action,  the  partnership  was  dis- 
solved under  an  agreement  that  J.  Graves  should  take  all  the 
assets  and  discharge  all  the  debts  and  liabilities  of  the  firm. 
Woodbury,  the  defendant,  was  insolvent.  The  report  of  the 
referee  in  the  last  entitled  cause  was  made  in  the  spring  of 
1839,  the  demand  having  been  immediately  before  assigned, 
for  a  valuable  consideration,  to  J.  O.  Pettingal.  It  appeared 
by  the  affidavit  of  J.  Graves  that  the  assignment  to  Pettingal 
was  made  after  the  referee  had  expressed  his  opinion,  but  be- 
fore the  signing  of  the  report.  It  did  not  appear  when  notice 
of  the  assignment  was  given  to  J.  Graves. 

JR.  Haight,  for  J.  Graves,  moved  to  set  off  so  much  of  the 
first  judgment  as  would  be  sufficient  to  discharge  the  other. 
He  cited  Grah.  Prac.  347  to  349,  2d  ed. 

S.  J.  Cowen,  in  behalf  of  Pettingal,  the  assignee,  cited  Barb, 
on  Set-off,  34,  38  j  Ramsey's  appeal,  (2  Watts,  228,  230.) 

By  the  Court,  COWEN,  J.  Jacob  Graves  being  creditor  in  a 
judgment  against  Woodbury,  and  debtor  in  a  judgment  recover- 
ed by  Woodbury,  presents  the  usual  case  for  a  set-off ;  and  it  is 
no  objection  that  the  latter  judgment  is  against  Jacob  Graves 
and  another  jointly.  (Simson  v.  Hart,  14  John.  63,  75,  and  the 
cases  there  cited.}  It  is  my  duty,  therefore,  to  direct  a  per- 
petual stay  of  Woodbury's  execution  on  Graves'  entering  satis- 
faction upon  his  judgment  for  so  much  as  the  judgment  against 
him  and  Daniel  Graves  amounts  to,  unless  Pettingal  has  ac- 
quired such  a  right  to  the  latter  judgment  as  entitles  him  to 
object.  That  he  purchased  and  took  an  assignment  of  this 


ALBANY,  FEBRUARY,  1843.  561 

t         Graves  t>.  Woodbury. 

jadgment  for  a  valuable  consideration,  even  without  notice, 
would  form  no  objection,  if  the  right  of  set-off  existed  at  the 
time  ;  for  an  assignee  takes  subject  to  all  equitable  as  well  as 
legal  defences  which  can  be  urged  against  the  assignor.  (Coop- 
er \.  Bigalow,  1  Cowen,  56,  206.)  The  case  of  Ramsey^*  op- 
peal  (2  Watts,  228,  230)  is  referred  to  as  holding  a  different 
rule  ;  but  we  must  follow  the  case  cited  from  my  reports,  until 
we  can  be  brought  to  see  that  it  was  an  obvious  departure  from 
principle*  So  far  from  that,  it  accords  with  the  general  doc- 
trine. There  is  no  pretence  here  that  Pettingal  wanted  notice 
of  Jacob  Graves'  judgment  when  the  assignment  was  executed  j 
and  if  Graves'  right  of  set-off  had  then  attached,  as  against  the 
assignor,  the  case  is  identical  with  that  of  Cooper  v.  Bigalow. 

I  am  inclined  to  think,  however,  that,  under  the  peculiar  cir- 
cumstances of  this  case,  no  right  of  set-off  in  any  form  had  at- 
tached at  the  time  of  the  assignment.  Clearly  no  legal  right  un- 
der the  statute  existed,  for  the  dejbt  due  to  Jacob  Graves  severally 
could  not  be  allowed  to  compensate  a  debt  due  from  him  and  an- 
other jointly.  (Mont,  on  Set-off ,  23.)  His  own  demand  alone 
was  in  judgment.  Had  Woodbury's  been  also  in  judgment  when 
he  assigned,  a  right  to  set  off  would  have  arisen  independently 
of  the  statute,  on  the  doctrine  peculiar  to  setting  off  judgments, 
under  which  the  courts  have  not  been  exact  in  requiring  the 
mutual  debts  to  be  due  to  and  from  the  same  number  of  per- 
sons. The  right  thus  to  depart  from  the  general  rule,  howev- 
er, never  arises  till  judgment  is  actually  entered  on  both  sides. 
Here,  according  to  Jacob  Graves'  own  affidavit,  the  demand 
against  him  and  Daniel  was  assigned  to  Pettingal  even  before 
the  referee  had  signed  his  report  of  the  balance  due.  At  that 
time,  there  could  be  no  pretence  of  a  right  to  move  summarily 
for  the  set-off.  (Ex part e  Bagg,  10  Wend.  615  j  People  v.  Judges 
of  Delaware  C.  P.,  6  Cotoen,598.)  Though  the  referee  had  ex- 
pressed his  opinion,  neither  of  the  parties  nor  even  the  referee 
himself  was  concluded.  But  it  would  have  been  the  same  thing  if 
the  report  had  been  signed.  It  was  still  open  to  revision,  if  erro- 
neous, on.  the  motion  of  either  party.  It  was  but  prima  facit 

VOL.  IV.  71 


562  CASES  IN  THE  SUPREME  COURT. 

Graves  ».  Woodbury.        ,• 

evidence  of  the  debt,  like  the  judgment  in  6  Cowen,  ut  supra. 
In  Garrick  v.  Jones^  (2  Dowl.  Pr.  Cas.  157,)  the  party  mov- 
ing had  obtained  a  verdict,  which  he  sought  to  set  off  against  a 
judgment  in  favor  of  his  adversary.  The  motion  was  denied 
on  the  sole  ground  that  final  judgment  had  not  been  obtained. 
(See  also  Johnson  v.  Lakeman^id.  646.) 

It  follows  that  Pettingal  purchased  a  demand  against  which 
no  right  of  set-off  existed  at  the  time ;  and  Graves  has  not 
shown  that  he  suffered  any  thing  for  want  of  immediate  notice 
of  the  assignment,  if  there  was  such  want  of  notice,  which  he 
does  not  aver.  When  Pentingal,  some  years  after,  perfected 
the  judgment,  the  demand  then  for  the  first  time  came  into  a 
shape  which  would  have  subjected  it  to  a  set-off;  but  then,  by 
motion  only,  even  if  the  right  had  still  continued  in  Woodbury. 
Legally  and  formally  it  did  continue  in  hiai ;  but  he  had  parted 
with  all  his  equitable  right ;  nothing  existed ;  nothing  arose 
which  could  be  objected  against  the  Woodbury  claim  when  he 
assigned  it ;  and  the  judgment  upon  which  the  set-off  is  sought  to 
be  raised,  was  equitably  in  favor  of  the  assignee.  In  an  equi- 
table sense  there  never  was  any  judgment  in  favor  of  Wood- 
bury  j  therefore  nothing  to  which  Graves  could  oppose  his  de- 
mand. The  case  is,  I  think,  within  the  principle  of  Hackett  v. 
Connettj  (2  Edw.  F.  Ch.  Rep.  73.)  There,  the  defendant  had 
a>  demand  against  the  complainant,  which  was  incapable  of  be- 
ing countervailed  by  a  set-off,  because  such  demand  was  unli- 
quidated. Pending  suit,  he  assigned  it  to  Alcock,  who  obtain- 
ed judgment ;  whereupon  the  complainant  filed  his  bill  to 
compel  a  set-off  of  the  judgment  against  previous  decrees 
for  costs  in  his  favor  on  the  dismissal  of  bills  filed  by  Connett. 
Vice  Chancellor  M'Coun  held  that  the  assignee  having  taken 
the  demand  before  any  right  to  set  off  the  decrees  existed,  had 
acquired  a  claim  paramount  to  that  of  the  assignor;  and,  on 
that  ground,  denied  the  relief  prayed  for.  It  is  true,  that  no- 
tice of  the  assignment  was,  in  that  case,  immediately,  and  be- 
fore judgment  obtained,  given  to  the  complainant.  But  the 
only  object  of  such  a  notice  is,  to  put  the  debtor  on  his  guard 


ALBANY,  FEBRUARY,  1843.  553 

.  Paine  t.  Chase. 

against  dealing  with  the  assignor  or  perhaps  obtaining  other 
demands  against  him  on  the  belief  that  he  still  continues  the 
equitable  owner.     Could  it  be  made  apparent  that  Graves  has  ' 
suffered  any  injury  for  want  of  notice,  the  question  would  be 
different. 

Pettingal  seems  to  have  fairly  obtained  an  assignment  as  an 
indemnity  against  liabilities  for  Woodbury,  amounting  to  some- 
thing near  if  not  quite  the  balance  reported  due  from  J.  &  D. 
Graves ;  and,  under  the  circumstances,  I  think  he  is  entitled 
to  collect  that  balance  by  execution,  notwithstanding  the  cross 
judgment  in  favor  of  Jacob  Graves. 

Motion  denied. 


PAINE  vs.  CHASE  and  others. 

Where,  in  a  suit  against  the  maker  and  endorsers  of  a  promissory  note,  one  of  the 
defendants  suffered  judgment  by  default,  and  the  others  pleaded  the  general 
issue ;  held,  that  the  plaintiff  was  not  at  liberty  to  sever  as  to  the  latter  and 
proceed  to  trial  against  one  only. 

MOTION  to  set  aside  inquest.  The  action  was  against  Chase, 
Tracy,  McClary  and  Bigelow,  and  was  commenced  by  declara- 
tion containing  the  common  money  counts.  A  notice  was  at- 
tached to  the  declaration  stating  that  the  suit  was  instituted  to 
recover  the  amount  due  on  a  promissory  note  made  by  Chase 
and  endorsed  by  the  other  defendants.  Chase  and  Tracy  plead- 
ed the  general  issue,  and  Bigelow  suffered  judgment  by  de- 
fault. Notice  of  trial  and  inquest  was  served  for  the  Seneca 
circuit  in  November,  which  was  afterwards  countermanded  as 
to/ Tracy,  and  an  inquest  taken  against  Chase  only.  Chase's 
counsel  objected  that  an  inquest  could  not  regularly  be  taken 
against  him  alone ;  but  the  circuit  judge  overruled  the  ob- 
jection. 

JV.  Hill,  Jr.,  for  the  motion,  said  the  act  of  1836,  p.  248> 


564  CASES  IN  THE  SUPREME  COURT. 

Ez  parto  Ketchum- 

§  2,  on  which  the  plaintiff  must  rely,  gave  the  right  to  sever 
in  two  cases  only  :  1.  Where  the  trial  is  put  off  by  some  of 
'the  defendants  j  and  2.  Where  a  default  is  obtained  against 
some  of  the  defendants.  In  either  case,  the  plaintiff  is  to  pro- 
ceed in  respect  to  the  other  parties  as  if  the  suit  had  been  com- 
menced against  them  alone. 

S.  J.  Cowen,  contra,  cited  Bank  of  Genesee  v.  Field,  (19 
Wend,  643.) 

By  the  Courlj  COWEN,  J.  It  is  not  denied  that  judgment 
by  default  was  properly  taken  against  Bigelow.  By  the  second 
alternative  of  the  second  section  of  the  statute,  (Sess.  L.  1835, 
p.  248,)  on  his  suffering  a  default,  the  plaintiff  was  entitled  to 
go  on  against  him  alone ;  in  other  words,  to  sever,  and  go  to  a 
trial  as  to  the  other  parties — that  is,  all  of  such  parties.  Then 
the  other  alternative  is,  that  if  the  trial  be  put  off"  by  any  of  the 
parties,  the  plaintiff  may  try  as  to  the  others.  The  cause  was 
not  so  put  off.  There  is  no  third  alternative  on  which  the 
plaintiff  could  sever  at  the  trial,  as  he  did  in  this  case.  He 
was  irregular.  ^ 

Motion  granted. 


Ex  parte  KETCHUM,  Public  Adm'r  of  the  City  of  New- York, 

Jn  order  to  warrant  this  court  in  granting  a  rule  against  a  person  the  disobedience  to 
which  would  be  a  contempt,  he  must  not  only  be  an  officer  of  the  court  or  a 
party  to  a  suit  or  proceeding  therein,  but  he  must  be  so  in  respect  to  the  particu- 
lar wrong  which  he  is  ordered  by  the  rule  to  repair.  Per  COWEN,  J. 

Accordingly,  where  an  attorney  of  the  superior  court  of  the  city  of  New- York, 
who  was  also  an  attorney  of  this  court,  was  retained  to  defend  a  suit  pending  in 
the  former,  and,  in  consequence  of  such  retainer,  received  certain  moneys  be- 
longing to  his  client ;  held,  that  this  court  had  no  power  to  grant  a  rule  requir- 
ing the  attorney  to  pay  over  the  money,  but  that  the  matter  belonged  exclusively 
to  the  superior  court. 


ALBANY,  FEBRUARY,  1843.  5(55 

Ex  parte  Kctchum. 

MOTION  for  a  rule  that  Kursheedt,  an  attorney  of  this  court,  pay 
over  to  the  relator  certain  moneys  which  were  alleged  to  have 
been  received  by  him  as  attorney  for  G.  A.  Humbert,  deceased, 
the  administration  of  whose  estate  belonged  to  the  relator. 
Sometime  before  Humbert's  death,  he  was  arrested  in  the  city  of 
New-York,  and  held  to  bail  in  the  sum  of  $4000  in  an  action  of 
trover  commenced  in  the  superior  court  of  that  city.  One  Boker 
became  his  bail  and  Humbert  left  with  him  a  note  of  $2000  as 
security.  At  the  request  of  Humbert's  agent,  Boker  deposited  in 
a  bank  in  the  city  $2613,54  in  cash,  belonging  to  Humbert,  to 
the  joint  account  of  Boker  and  Kursheedt,  who  was  retained  and 
acted  in  the  cause  as  Humbert's  attorney  on  record.  The  mo- 
ney thus  deposited  was  intended  as  a  further'indemnity  to  Boker 
against  his  liability  as  bail.  In  the  spring  of  1841,  this  money 
was  drawn  out  of  the  bank  on  the  suggestion  of  Kursheedt,  and 
$2000  invested  by  him  in  treasury  notes,  which  he  held  in  trust 
for  Boker's  indemnity.  Humbert  dying  in  Switzerland,  where 
he  resided,  Kursheedt  told  Boker  he  was  discharged  as  bail, 
and  expressed  an  intention  to  send  the  money  to  Humbert's 
father.  He  got  the  treasury  notes  cashed,  but  declined  to 
pay  the  money  over  to  the  relator  unless  certain  charges  were 
allowed  to  an  amount  which  the  relator  thought  too  high. 

Jl.  Taber,  for  the  relator,  cited  Ex  parte  Staats,  4  Cowen,  76, 
and  note  ;  Grah.  Pr.  55  j  2  R.  S.  440,  §  1,  2d.  ed. 

G.  R.  J.  Bowdoin,  contra. 

By  the  Court,  COWEN,  J.  It  is  difficult  to  see  any  reason 
against  a  rule  that  Kursheedt  should  pay  the  balance  due  from 
him  to  Humbert's  estate  out  of  the  avails  of  the  treasury  notes. 
Nor  do  I  understand  that  he  refuses  to  do  so.  The  dispute  re- 
lates to  the  amount  of  his  charges.  The  power  to  determine 
that  dispute  on  motion  belongs,  I  think,  exclusively  to  the 
superior  court,  as  an  attorney  of  which  Kursheedt  was  acting. 
It  was  in  consequence  of  his  retainer  as  an  attorney  of  that 


566  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Ketchum. 

court,  and  the  confidence  reposed  in  him  as  such  by  Humbert 
or  his  agent,  that  he  was  enabled  to  obtain  the  money.  It 
makes  no  difference  that  he  is  also  an  attorney  licensed  by  this 
court.  The  imputed  default  did  not  arise  in  the  course  of  his 
practice  here,  or  as  a  consequence  of  his  license  here.  We 
cannot  see  that  such  license  furnished  any  reason  for  the  retain- 
er, beyond  that  of  the  superior  court. 

I  admit  there  may  be  cases  where  an  attorney  of  this  and 
other  courts  receiving  money  under  an  agency  having  no  par- 
ticular reference  to  a  suit  here,  might  be  attached  by  this  court 
for  non-payment,  on  the  principle  that  he  was  retained  in  respect 
to  his  professional  character.  That  would  leave  room  for  in- 
ferring that,  had  he  not  been  an  attorney  of  this  court  he  would 
not  have  been  so  retained.  But  such  an  inference  is  excluded 
where  the  retainer  was  in  a  suit  already  brought  and  pending 
in  another  court.  It  is  impossible  then  to  say  that  he  is  in  de- 
fault as  an  attorney  of  this  court,  which  I  take  it  we  must  see 
before  we  have  authority  to  punish  him  by  attachment.  We 
might  about  as  well  attempt  to  punish  a  man  for  professional 
misbehavior  in  conducting  a  suit  or  defence  in  the  court  of  a 
neighboring  state,  as  to  interfere  on  this  motion.  Suppose  the 
attorney  of  a  county  court  to  be  guilty  of  the  plainest  miscon- 
duct, the  mutilation  of  a  record  for  instance,  no  one  would 
suppose  that  we  could  issue  process  of  contempt  because  he 
happened  at  the  same  time  to  be  an  attorney  of  this  court.  To 
warrant  a  rule  against  a  person,  the  disobedience  to  which 
would  be  a  contempt,  he  must  not  only  be  a  party  or  officer  of 
the  court,  but  he  must  be  so  in  respect  to  the  particular  wrong 
which  he  is  ordered  by  the  rule  to  repair. 

Motion  denied. 


ALBANY,  FEBRUARY,  1843.  557 

Vermilyea  c.  Rogers. 


VEHMILYEA  vs.  ROGERS. 

The  second  section  of  the  act  to  prevent  usury  (Sen.  L.  of  '37,  p.  487)  was  in- 
tended to  give  the  defendant  the  right  to  insist  on  a  personal  examination  of  the 
plaintiff  at  the  trial ;  and  the  latter  ought  not  to  be  allowed,  by  absenting  him 
self  from  the  state,  to  compel  the  defendant  to  resort  to  a  commission.  Per 
COWEN  J. 

Whether  a  commission  .may  issue  for  the  purpose  of  examining  the  plaintiff,  in 
such  case,  quere. 

Where  the  plaintiff  was  temporarily  absent  from  the  state,  so  that  he  could  not  be 
served  with  a  subpoena,  and  neglected  to  attend  the  circuit  at  which  the  cause 
was  set  down  for  trial,  notwithstanding  a  notice  to  his  attorney  requiring  such 
attendance,  held,  that  the  circuit  judge  might,  in  his  discretion,  make  a  general 
order  postponing  the  trial  till  the  plaintiff  should  appear,  especially  as  there  was 
reason  to  suspect  he  remained  absent  with  a  view  of  evading  a  personal  ex- 
amination. BROXSON,  J.  dissented. 

The  granting  or  refusing  of  a  motion  for  postponement  at  the  circuit  is  within  the 
discretion  of  the  judge,  and  his  decision  ought  not,  in  general,  to  bo  interfered 
with.  Per  COWEN,  J. 

STAYING  proceedings  till  the  plaintiff  attend  as  a  witness. 
In  debt  on  bond,  the  defendant  interposed  and  verified  by  affi- 
davit a  plea  of  usury,  giving  notice  to  the  plaintiff's  attorney 
that  he  should  require  his  (the  plaintiff's)  attendance  as  a  wit- 
ness at  the  circuit  in  New- York  in  March  1841,  where  the 
venue  was  laid.  The  plaintiff  not  attending  in  pursuance  of 
the  notice,  the  judge  put  off  the  cause.  It  was  afterwards  no- 
ticed for  trial  at  each  successive  circuit,  but  was  postponed  for 
the  same  cause  ;  and  was  reached  on  the  calendar  at  the  two 
circuits  previous  to  the  last.  At  this  circuit,  an  order  was  made 
by  the  circuit  judge  delaying  the  trial  till  the  plaintiff  should 
personally  appear,  or  until  further  order,  &c.  The  plaintiff 
was  all  this  time  in  London,  and  the  judge  made  the  order  on 
the  ground  that  the  defendant  was  entitled  to  insist  on  the  per- 
sonal attendance  of  the  plaintiff  at  the  trial ;  though  the  plain- 
tiff's  counsel  contended  that  the  defendant  had  a  right  to  ex- 
amine the  plaintiff  under  a  commission.  The  judge  held  that 


568  CASES  IN  THE  SUPREME  COURT. 

Vermilyea  ».  Rogers. 

a  commission  could  not  issue.  The  plaintiff  also  offered  to 
show  by  certain  proceedings  in  chancery,  and  other  circumstan- 
ces, that  the  application  to  postpone  was  not  with  a  reasonable 
expectation  of  obtaining  material  evidence  from  the  examina- 
tion of  the  plaintiff;  but  the  judge  decided  that  he  could  not 
look  into  such  proceedings. 

On  the  part  of  the  defendant  it  was  shown  that  the  plaintiff 
did  not  reside  in  England,  but  in  the  city  of  New-York,  and 
was  only  temporarily  absent ;  that  the  amount  in  controversy 
was  large,  and  that  the  plaintiff  was  alone  interested. 

It  now  appeared  that  the  plaintiff  was  expected  to  return  to 
his  residence  in  New-York  in  a  short  time. 

A,  Taber,  for  the  plaintiff,  moved  to  vacate  the  judge's  or- 
der, citing  Sess.  Laws  of  1837,  p.  487,  §  2  ;  2  R.  S.  315,  § 
19,  2d  ed. 

G.  M.  Speir,  contra,  cited  Bosworth  v.  Perhamus,  (20  Wend. 
611.)  He  denied  that  the  court  had  power  to  grant  a  com- 
mission. 

By  the  Court,  COWEN,  J.  It  is  scarcely  necessary  to  deny,  in 
order  to  justify  the  judge's  course,  that  a  commission  might  have 
been  issued.  In  authorizing  the  defendant  to  demand  his  adver- 
sary's oath,  the  statute  intended  effectually  to  enlarge  his  means 
of  proof.  We  cannot  impute  to  it  a  promise  of  the  plaintiff's  tes- 
timony ;  and  at  the  same  time  an  intent  that  he  may  absent 
himself  from  the  state  at  such  convenient  period  as  he  shall 
choose  to  commence  his  suit,  and  put  off  the  defendant  with  a 
commission.  If  he  take  one,  of  what  value  will  it  be  ?  On 
its  reaching  London,  the  plaintiff  has  perhaps  gone  to  Paris, 
and  on  following  him  there,  he  has  departed  for  Rome.  The 
large  amount  here  in  controversy  (more  than  $19,000)  would 
defray  the  expense  of  such  evasions  through  a  large  series  and  for 
a  good  while.  But  if  he  remain  at  London,  what  law  is  shown 
to  us  that  would  there  compel  him  to  testify  ?  He  is  a  party  j 


ALBANY,  FEBRUARY,  1843.  559 

Vermilyca  t>.  Rogers. 

but  if  otherwise,  I  know  not  of  any  process  which  would  com- 
pel his  attendance  before  commissioners ;  or,  if  there  be  such, 
and  it  is  no  more  efficient  than  our  own,  he  could  afford  to  pay 
the  penalty  of  refusing  to  appear.  In  some  of  the  European 
nations,  the  government,  I  believe,  will  not  allow  commission- 
ers to  examine  even  a  voluntary  witness  without  our  first  ask- 
ing its  permission.  Suppose  the  plaintiff  had  gone  into  New- 
Jersey  to  remain  while  this  suit  was  pending,  the  same  argu- 
ments against  delay  would  come  with  the  same  force.  He 
controls  the  time  of  trial,  and  is  most  deeply  interested,  if  the 
defendant's  plea  and  oath  be  true,  to  evade  testifying  at  all, 
and  especially  upon  the  stand  where  he  can  be  cross-examined. 
It  is  not  without  some  weight  that  the  defendant  may  desire 
an  appeal  to  the  fear  of  temporal  punishment  if  the  plaintiff 
should  testify  falsely.  This  would  be  lost,  perhaps  entirely, 
by  an  examination  abroad.  Suppose  the  plaintiff  had  spirited 
away  a  material  witness  for  the  defendant,  would  the  judge  be 
bound  to  take  for  answer  that  the  witness  might  be  pursued  by 
a  commission  ?  Would  he  not  rather  be  bound  to  postpone  the 
trial,  with  costs  to  be  paid  by  the  plaintiff?  I  said  in  Bos- 
worth  v.  PerhamuSj  (20  Wend.  611,)  in  respect  to  a  case  some- 
what similar  to  the  present,  that  the  judge  has  a  discretion.  It 
was  no  more  than  what  has  been  said  a  thousand  times  of  an 
application  to  put  off  a  trial  for  want  of  testimony.  He  al* 
ways  has  a  discretion  in  such  a  case,  with  which  we  ought  not 
in  general  to  interfere — perhaps  never — in  the  case  at  bar  ob- 
viously not.  The  cause  has  been  repeatedly  postponed,  being 
as  many  times  noticed  for  trial  by  the  plaintiff,  until  we  are 
now  informed  that  the  necessities  of  his  business  will  probably 
bring  him  home  in  a  short  time,  say  this  winter  or  next  spring. 
Yet  we  find  his  counsel  stoutly  resisting  a  motion  made  last 
November  circuit  to  put  off  the  cause,  on  the  ground  that  a 
commission  should  have  gone.  Very  likely  the  judge  felt  a 
suspicion  that  the  plaintiff  was  keeping  away  from  his  business 
because  he  was  afraid  of  being  subpoenaed  if  the  cause  should 
not  be  pressed  through  before  his  arrival. 
VOL.  IV.  72 


570        CASES  IN  THE  SUPREME  COURT. 


Culver  v.  Green. 


It  is  suggested,  and  a  belief  expressed  in  one  of  the  affida- 
vits, that  the  plaintiff  is  sick.  If  a  witness  be  so  much  indis- 
posed that  he  will  probably  be  unable  to  attend  at  one  circuit, 
it  is  always  an  excuse  for  putting  off  the  trial  till  the  next  j 
and,  on  a  strong  and  clear  case  like  the  present,  it  is  by  no 
means,  an  abuse  of  discretion  to  postpone  the  trial  generally  till 
he  shall  attend. 

BRONSON,  J.  dissented. 

Motion  denied. (a) 

(a)  See  Rapelye  v.  Prince,  (ante,  p.  119.) 


CULVER  vs.  GREEN  and  others. 

The  sureties  in  a  bond  given  upon  appeal  from  a  justice's  judgment,  pursuant  to  2 
R.  S.  259,  §  189,  cannot  be  made  liable  beyond  the  amount  of  the  penalty,  though 
the  judgment  recovered  by  the  appellee  in  the  common  pleas  exceed  that 
amount. 

In  an  action  on  such  bond,  proceedings  against  the  sureties  will  be  stayed  on 
their  paying  into  court  the  amount  of  the  penalty  with  costs. 

THE  plaintiff  recovered  judgment  in  a  justice's  court  against 
McDonald,  who  appealed  to  the  common  pleas.  The  appeal 
bond  was  executed  by  McDonald  as  principal  and  by  Green 
and  Miles  as  sureties.  Afterwards,  this  suit  was  commenced 
against  all  the  obligors  in  the  bond,  the  plaintiff  declaring  in  debt 
for  $300,  and  averring  the  rendition  of  a  judgment  in  his  favor, 
on  the  appeal,  of  $207,69.  A  motion  was  now  made  in  behalf 
of  the  sureties  for  an  order  staying  proceedings  as  against  them 
on  their  paying  into  court  $100  (the  penalty  of  the  bond)  and 
costs. 

JV*.  Hill,  Jr.  for  the  motion,  insisted  that  the  sureties  could 
not  be  made  liable  for  more  than  the  penalty  of  the  bond.  He 


ALBANY,  FEBRUARY,  1843.  571 


Culver  c.  Green. 


cited  2  R.  S.  187,  §  189,  2d  ed.;  id.  191,  §  223 ;  Sess.  Laws 
of  1824,  p.  296,  §  39 ;  Oshiel  v.  DeGraw,  (6  CWen,  63  j) 
C/arA:  v.  .BtwA,  (3  id.  151.) 

S.  Stevens,  contra,  conceded  that,  as  a  general  rule,  no  more 
than  the  penalty  of  a  bond  could  be  recovered  against  a  sure- 
ty. He  contended,  however,  that  this  case  was  an  exception. 
The  statute  (2  R.  S.  191,  §  223,  224,  2d  ed.)  provides  that, 
on  the  execution  being  returned  unsatisfied,  the  appellee  may 
recover  in  an  action  on  the  appeal  bond,  as  damages,  the 
amount  remaining  due  and  unsatisfied  on  such  execution.  This 
differs  from  the  language  of  the  old  act  under  which  the  case 
in  6  Cowen  was  decided.  (Sess.  Laws  of  1824,  ch.  238,  $  39.) 
That  act  gave  the  appellee  the  right  to  prosecute  &c.  for  the 
recovery  of  the  amount  of  such  judgment  and  costs.  It  did 
not  define  what  the  plaintiff  might  recover  ;  whereas  the  pres- 
ent statute  declares  that  he  may  recover  as  damages  &c.  the 
amount  due. 

If  the  form  of  action  adopted  in  this  case  be  such  as  to  pre- 
clude a  recovery  beyond  the  penalty  of  the  bond,  the  court 
will  allow  the  plaintiff  to  amend  by  declaring  in  covenant. 

By  the  Court,  COWEN,  J.  The  difference  between  the  old 
and  new  statute  lies  in  words  which  express  the  same  thing  in 
substance.  The  old  act  was,  that  the  appellee  might  prosecute 
for  the  recovery  of  the  amount.  This  would  have  been  idle, 
if  it  did  not  mean  he  should  in  fact  recover  it.  The  revised 
statutes  provide  that  he  may  recover  as  damages  the  amount 
remaining  due  fyc.  The  former  act  was  taken  with  the  quali- 
fication, as  against  the  sureties,  arising  from  the  nature  of  the 
transaction,  viz.  with  the  proviso  that  the  amount  did  not  ex- 
ceed the  penalty.  The  present  statute  must  be  read  in  the 
same  way. 

Motion  granted. 


572        CASES  IN  THE  SUPREME  COURT. 


Ez  parte  Reed. 


Ex  parte  REED. 

The  condition  of  a  sheriff's  bond  docs  not  extend  beyond  nonfeasance  or  misfea. 

sance  in  respect  to  acts  which  he  is  required  to  perform  officially. 
The  party  moving  for  leave  to  prosecute  such  bond  must  show  affirmatively  that 

the  sheriff  has  been  guilty  of  some  default  or  misconduct  in  his  office. 
Accordingly,  where  the  papers  on  which  the  motion  was  made  showed  only  that 

the  sheriff  had  failed  to  satisfy  a  judgment  recovered  against  him  in  trespass 

for  seizing  the  relator's  goods  under  a  fi.  fa.,  and  that  on  the  trial  of  the  cause 

the  sheriff  attempted  to  justify  under  the  writ ;  held,  that  these  facts  were  not 

evidence  of  the  seizure  having  been  made  virtute  officii,  and  the  motion  was 

therefore  denied. 
Whether  the  motion  would  have  been  granted  had  it  been  shown  that  the  original 

seizure  was  lawful,  and  that  the  judgment  was  recovered  by  reason  of  the  sher-. 

iff  having  rendered  himself  a  trespasser  ab  initio,  Q.UERE. 
The  cases  of  Carmack  v.  The  Commonwealth,  (5  Binn.  184,)  and  Commonwealth 

v.  Stockton,  (5  Monroe,  192,)  commented  on  and  questioned. 

i 

R.  W.  Peckham  moved  for  leave  to  prosecute  the  official 
bond  of  M.  B.  Hart,  sheriff  of  the  city  and  county  of  New- 
York.  The  motion  was  founded  on  affidavits  stating  that  a 
judgment  in  trespass  had  been  recovered  against  Hart,  for  the 
seizure  (by  his  deputy)  of  the  relator's  goods  under  a  fi.  fa. ; 
that  the  judgment  had  not  been  satisfied,  and  that,  on  the  trial 
of  the  cause,  Hart  attempted  to  justify  the  seizure  as  sheriff. 
The  bond  was  in  the  form  prescribed  by  statute,  (1  R.  S.  378, 
^  67,)  the  condition  being  that  Hart  should  "well  and  faithfully 
in  all  things  perform  and  execute  the  office  of  sheriff  of  the  said 
city  &c.,  during  his  continuance  in  said  office  &c.,  without 
fraud,  deceit  or  oppression." 

S.  Stevens,  contra,  objected  that  the  sureties  were  not  lia- 
ble ;  the  wrong  done  by  the  sheriff  not  being  within  the  words 
of  the  condition. 

By  the  Court,  COWEN,  J.  The  condition  is,  that  Hart  shall 
perform  and  execute  the  office  &c. ;  not  that  he  shall  avoid  the 
commission  of  wrongs  generally.  The  words  cannot  be  ex- 


ALBANY,  FEBRUARY,  1843.  573 

Ex  parte  Reed. 

tended  beyond  nonfeasance  or  misfeasance  in  respect  to  acts 
which  by  law  he  is  required  to  perform  as  sheriff.  Here 
the  sureties  are  sought  to  be  fixed  with  the  consequences  of 
a  trespass  having  no  connection  with  his  office,  any  more 
than  an  assault  without  a  warrant  of  arrest.  The  charge  of  a 
trespass  assumes  that  the  act  could  not  have  been  virtute  offi- 
cii.  It  is  no  more  the  act  of  a  sheriff  because  done  colore  ojfi- 
ciij  than  if  he  had  been  destitute  of  process.  To  allow  a  pros- 
ecution, would  be  equivalent  to  saying  that  the  sureties  of  a 
sheriff  are  bound  for  his  general  good  behaviour  as  a  citizen. 
How  it  would  be  were  the  original  seizure  lawful,  but  the 
sheriff  a  trespasser  ab  initio  by  reason  of  subsequently  abusing 
his  authority,  we  are  not  called  upon  to  enquire.  (See  per  Gold- 
thwaite,  /.,  in  The  Governor  v.  Hancock,  2  Alaba.  Rep.  730.) 
It  is  the  business  of  the  relator  on  moving  for  leave  to  prose- 
ecute  the  bond,  to  show  us  that  the  sheriff  has  been  guilty  of  some 
default  or  misconduct  in  his  office.  (2  R.  S.  390,  §  1,  2d  ed.) 
All  the  relator  does  show  is,  that  the  sheriff  has  been  sued  for 
a  trespass  which  he  attempted  and  failed  to  justify  by  virtue 
of  a.fi.fa.  For  aught  that  appears,  the  act  might  have  been  a 
wanton  or  malicious  wrong  for  which  replevin  or  any  other  ac- 
tion would  have  lain  against  the  sheriff.  Applications  like  the 
present  have,  I  presume,  been  uniformly  denied.  This  was  at 
least  so  of  Ex  parte  Martin,  lately  moved  before  the  chief  jus- 
tice, (MS.  Oct.  Term,  1842  ;)  and  I  have  been  induced  farther 
to  consider  the  present  case  for  the  single  reason  that  a  differ- 
ent doctrine  was  some  years  ago  held  by  the  supreme  court  of 
Pennsylvania,  (Carmack  v.  The  Commonwealth,  5  Binn.  184,) 
and  perhaps  also  by  the  court  of  appeals  in  Kentucky  j  (Com- 
monwealth v.  Stockton,  5  Monr.  192  ;)  though,  for  aught  that  the 
latter  case  discloses,  the  decision  might  have  turned  on  some- 
thing peculiar  in  the  words  of  the  condition.  In  Carmack  v. 
The  Commonwealth,  the  learned  judges  admitted  the  necessity 
of  showing  that  the  seizure  of  A.'s  goods  by  a  sheriff,  under  a 
fi.fa.  against  B.,  was  an  omission  faithfully  to  execute  and  per- 
form the  trust  and  duty  to  his  office  lawfully  appertaining. 


574  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Reed. 

For  aught  I  know,  other  courts  may,  in  the  office  of  construing 
the  words  before  us,  have  arrived  at  a  similar  conclusion.  But 
I  presume  it  is  no  where  asserted  that  the  words  extend  in 
their  natural  import  to  an  act  done  under  the  mere  pretence  or 
color  of  authority,  when  there  is  in  fact  none.  There  being 
no  authority,  there  is  no  office,  and  nothing  official.  This  is  a 
rule  which  ranges  through  all  the  gradations  of  legal  power 
from  the  monarch  to  the  constable.  The  statutes  restricting 
venues  and  requiring  notice  before  suit  brought  in  cases  of  acts 
done  by  virtue  of  or  in  the  execution  of  certain  offices,  have 
been  extended  to  those  done  colore  officii,  upon  consideration 
of  that  protection  against  harrassing  litigation  which  is  due  to 
officers  falling  into  mistakes  while  acting  in  good  faith,  Even 
that  has  been  doubted  with  us.  (See  Seeley  v.  Birdsall,  15 
John.  267,269,  270  ;  but  see  1  Chit.  PI.  272,  Jim.  ed.  of  1841, 
Tidffs  Pr.  29,  9th  Lond.  ed.,  contra.}  The  courts  say  that,  un- 
less the  acts  be  thus  extended,  they  would  be  nugatory.  (Strait 
v.  Gee,  2  Stark.  R.  445, 448  ;  Bird  v.  Gunston,  2  Chit.  R.  459, 
461.)  All  this,  I  admit,  may  well  be  said  by  way  of  enlarging 
such  remedial  statutes.  Yet  it  is  still  going  beyond  the  words. 
It  is  extending  them  by  construction.  The  Pennsylvania 
statute,  the  Kentcky  statute  and  our  own,  or  the  words  of 
condition  in  bonds  drawn  up  under  them,  might  be  equally 
extended,  if  the  principle  of  the  cases  cited  and  others  of  a 
like  character  could  be  applied.  It  may  be  admitted  that, 
so  far  as  the  bond  is  concerned,  the  respective  liabilities  of 
the  sheriff  and  his  sureties  are  co-extensive.  I  suppose  they 
are ;  but  neither  go  beyond  the  obligation  to  perform  and  exe- 
cute the  office  well  and  faithfully.  (1  R.  S.  371,  §78,  2d 
ed.  )  The  words  are  significant  and  operative  for  the  purpose 
of  obliging  the  sheriff  to  act  properly  in  all  those  things  which 
come  within  the  scope  of  his  power  and  duty.  In  their  ut- 
most meaning,  they  import  nothing  beyond.  Reasons  of  poli- 
cy were  urged  by  the  judges  in  Carmack  v.  The  Commonwealth, 
and  seem  to  have  had  some  influence  in  TJie  Commonwealth  v. 
Stockton.  Among  others,  the  want  of  a  property  qualification  in 


ALBANY,  FEBRUARY,  1843.  575 

Ez  partc  Reed. 

•herifFs,  the  expense  of  the  canvass  for  the  office,  their  frequent 
poverty  and  ultimate  insolvency.  These  may  furnish  an  argu- 
ment for  the  legislature  requiring  another  form  of  security  j 
but  they  do  not  strike  us  as  furnishing  sufficient  ground  for  im- 
puting an  obligation  beyond  what  the  parties  have  expressed. 
If,  as  supposed  by  Ch.  J.  Tilghman,  the  act,  though  illegal,  was 
done  in  the  execution  of  the  sheriff's  office,  we  agree  that  the 
obligors  would  be  liable.  Our  difficulty  lies  in  predicating 
official  conduct  of  an  act  for  which  the  sheriff  is  held  liable 
because  he  transcends  the  bounds  of  his  office.  A  trespass  is 
certainly  not  a  faithful  performance  of  the  office,  or  any  per- 
formance at  all.  It  is  the  same  thing  as  if  he  should  cut 
wood  on  his  neighbor's  premises  to  repair  his  fences.  Where 
is  the  limit  of  the  argument,  if  it  be  extended  to  any  kind 
of  acts  with  which  his  office  and  process  have  no  connection  ? 
It  seems  to  us  that  it  may  as  well  be  carried  to  trespasses  out 
of  his  county  or  out  of  the  state. 

The  learned  court  of  Kentucky  think  the  condition  should 
embrace  every  act  for  which  the  sheriff  would  be  answerable 
if  done  by  his  bailiff.  The  maxim  of  respondent  superior  has 
certainly  been  carried  farther  in  such  case  than  the  general 
doctrine  of  principal  and  agent  or  master  and  servant  will  war- 
rant. We  have  here,  however,  another  case  in  which  policy 
gives  a  larger  effect  to  the  power  or  deputation  than  its  exact 
language  will  warrant.  No  authority  is  given  by  the  sheriff  to 
commit  a  trespass ;  and  yet  the  arrest  of  a  stranger  or  a  seizure 
of  his  goods  colore  officii  is  imputed  to  the  sheriff.  It  cannot 
be,  however,  that  this  is  on  the  ground  of  omission  faithfully 
to  execute  and  perform  his  office.  The  case  goes  on  the  ad- 
mission that  the  wrong  is  a  naked  trespass,  which  it  could  not 
be  if  it  lay  in  the  line  of  official  performance.  The  remedy  for 
not  faithfully  performing  is  an  action  on  the  case  j  at  any  rate, 
not  trespass  for  the  original  act. 

The  late  case  of  The  Governor  v.  Hancock  (2  Alabama  Rep. 
728,)  held  that  on  words  like  those  before  us  the  oblige 
tion  of  the  sureties  did  not  extend  to  a  fraud  by  the  sher- 


576  CASES  IN  THE  SUPREME  COURT. 

Ex  parto  Rccd. 


iff,  who,  after  he  had  attached  property,  induced  the  plaintiff 
to  assign  her  judgment  to  him  by  a  false  representation  as  to 
the  condition  of  the  property.  Yet  here  would  seem  to  have 
been  an  act  coming  nearer  to  the  violation  of  official  duty  than 
the  one  under  consideration. 

The  question  is  not  free  from  difficulty ;  but  we  think  that,  to 
warrant  a  recovery  on  the  words  of  this  condition,  it  is  incumbent 
on  the  relator  to  show  that  his  demand  against  the  sheriff  is  for 
some  default  in  a  matter  transacted  by  him  in  virtue  of  his 
office,  or  for  the  omission  of  some  act  which  as  sheriff  it  was 
his  duty  to  perform.  This  the  relator  would  have  to  show  on 
the  trial.  It  was  held  in  Carmack  v.  The  Commonwealth,  that 
the  record  in  the  suit  against  the  sheriff  would  not  conclude  in 
an  action  on  the  bond ;  indeed,  that  the  relator  must  show  a 
good  cause  of  action  against  the  sheriff,  independently  of  the 
recovery  against  him.  With  us,  it  would  seem  that  this  re- 
covery can  be  received  as  proving  nothing  beyond  rem  ipsam, 
if  it  be  admissible  at  all.  (See  2  R.  S.  390,  2d.  ed.)  At  any 
rate,  we  are  not  warranted  by  the  statute  in  granting  leave  to 
prosecute  the  bond,  unless  the  motion  be  sustained  by  proof  of 
a  subsisting  and  unsatisfied  claim  within  the  terms  of  the  condi- 
tion. This  proof,  we  are  of  opinion,  has  not  been  furnished; 
and  that  the  motion  must  therefore  be  denied.  The  denial  is, 
however,  without  costs. 

Rule  accordingly. 


ALBANY,  FEBRUARY,  1848.  577 


Bertbelon  c.  BctU. 


BEBTHELON  vs.  BETTS. 

Where  a  debtor  IB  proceeded  against  by  warrant  under  the  third  and  subsequent 
sections  of  the  non-imprisonment  act,  (Sew.  L.  of  '31,  p,  396,)  and  obtains  a  dis- 
charge pursuant  to  the  seventeenth  section,  the  assignment  enures  only  to  the 
benefit  of  the  creditor  on  whose  application  the  proceeding  was  instituted,  and 
not  to  the  benefit  of  creditors  generally.  Per  COWEN,  J. 

That  part  of  the  act  authorizing  a  debtor  to  be  thus  proceeded  against  is  not  an  in. 
solvent  law,  a.id  therefore  was  not  suspended  by  the  act  of  congress  in  relation 
to  bankruptcy  passed  August  19th,  1841. 

A  decree  of  bankruptcy  in  cases  of  voluntary  application  does  not  relate  back  so 
as  to  affect  a  previous  transfer  of  the  bankrupt's  property  made  in  intitum  to 
satisfy  an  individual  debt ;  and  this,  though  the  transfer  took  place  after  the 
filing  of  the  petition. 

Accordingly,  where  the  petition  was  filed  on  the  25th  of  August,  1842,  and  five 
days  afterwards  the  petitioner  was  ordered  to  make  an  assignment  under  the 
seventeenth  section  of  the  non-imprisonment  act,  which  he  accordingly  did  on 
the  same  day,  and  obtained  a  decree  for  his  discharge  as  a  bankrupt  in  Septem- 
ber following ;  held,  that  the  creditor  in  the  non-imprisonment  proceeding  was 
entitled  to  have  his  debt  satisfied  out  of  the  proceeds  of  the  property  assigned 
therein,  notwithstanding  the  claim  of  the  assignee  in  bankruptcy. 

BANKRUPT  act.  On  the  28th  of  July,  1842,  the  plaintiff 
instituted  proceedings  against  the  defendant,  before  the  recor- 
der of  the  city  of  Albany,  to  obtain  satisfaction  of  a  judgment 
in  the  manner  prescribed  by  the  non-imprisonment  act.  (Sess. 
Laws  of  1837,  p.  396,  §  3  et  seq.)  An  execution  had  been  pre- 
viously issued  and  returned  unsatisfied.  After  a  hearing  before 
the  recorder,  he  directed  a  commitment  of  the  defendant 
unless  he  complied  with  the  provisions  of  the  10th  sec- 
tion of  the  act ;  and  a  bond  was  thereupon  given,  conditioned 
that  the  defendant  would,  within  thirty  days,  apply  for  an  as- 
signment of  his  property  &c.  A  petition  was  afterwards 
(August  25th,)  presented  to  the  recorder,  in  conformity  to  the 
condition  of  the  bond,  and,  on  the  30th  of  August,  1842,  a 
general  assignment  of  all  the  defendant's  estate  was  ordered  to 
be  made  to  one  Valentine.  An  assignment  was  accordingly 
made  on  the  same  day,  under  which  the  assignee  realized  more 

VOL.  IV.  73 


578  CASES  IN  THE  SUPREME  COURT. 

Berthelon  r.  Belts. 


than  sufficient  to  satisfy  the  plaintiff's  judgment  and  the  costs 
of  the  proceedings  before  the  recorder.  A  motion  was  there- 
fore now  made  for  an  order  that  the  assignee  pay  to  the  plain- 
tiff's attorney  a  sum  sufficient  to  satisfy  the  said  judgment  and 
costs. 

In  opposition  to  the  motion  it  appeared  that,  on  the  22d  of 
August,  1842,  the  defendant  signed  and  verified  his  petition 
for  a  discharge  under  the  "  act  to  establish  a  uniform  system 
of  bankruptcy  throughout  the  United  States,"  passed  August 
19th,  1841 ;  that  the  petition  was  presented  to  the  district 
judge  on  the  25th  of  August ;  that  a  decree  of  bankruptcy 
was  made  on  the  19th  of  September  following  ;  and  that  a  dis- 
charge was  granted  on  the  6th  of  February,  1843.  The  as- 
signee in  bankruptcy  claimed  that  he  was  entitled  to  all  the 
effects  of  the  defendant  at  the  time  of  presenting  his  petition  to 
the  district  judge. 

P.  Gansevoort,  for  the  motion,  cited  Sess.  Laws  of  1831,  p. 
398,  §  10,  subd.  4  ;  id.  p.  400,  §  18,  19  j  1  R.  S.  789,  791,  § 
15,  2d  ed. ;  Pract.  Directions,  fyc.  under  the  JVbn  Imp.  Act, 
Pamph.  p.  15  ;  2  R.  S.  803,  §  36,  sub.  4,  2d  ed.;  The  People 
v.  Mel,  (3  Hill,  109.) 

A.  Taber,  for  the  assignee  in  bankruptcy,  said  the  decree  re- 
lated back  to  the  time  of  filing  the  bankrupt's  petition,  and  en- 
titled the  assignee  to  all  the  property  belonging  to  the  bank- 
rupt at  that  time.  (Dictum  of  Conkling,  J.  in  Matter  oj  Rust-) 
MS.  decided  Dec.  1842.)  The  defendant  had  not,  up  to  that 
time,  any  lien  on  the  fund  in  question,  admitting  the  existence 
of  a  right  to  proceed  as  the  plaintiff  has  done  since  the  bank- 
rupt act  was  passed.  But  this  act  suspended  the  right  to  pro- 
ceed under  all  state  insolvent  laws.  (Earned  case,  5  Law  Re- 
porter, 117,  and  the  cases  there  cited.} 

By  the  Court,  COWEN,  J.  The  bonajides  of  the  proceedings 
before  the  recorder  and  the  assignment  of  the  30th  of  August 


ALBANY,  FEBRUARY,  1843. 


Bcrthclon  r.  Bette. 


are  not  questioned.  Indeed,  so  far  from  these  being  intended 
as  a  fraud  against  the  proceedings  in  bankruptcy,  the  inference 
would  rather  be  that  the  main  design  of  resorting  to  the  latter 
was  to  defeat  the  plaintiff's  remedy  under  the  non-imprison- 
ment act.  Therefore,  if  the  law  under  which  the  plaintiff  as- 
sumed to  proceed  be  a  subsisting  one,  and  the  doctrine  of  rela- 
tion does  not  apply,  the  motion  should  be  granted. 

Whether  the  non-imprisonment  act  (§  10  subd.  4)  be  an 
insolvent  law  within  the  meaning  of  Earned  case,  (5  Law  Re- 
porter, 117,)  and  other  cases  referred  to  on  the  argument,  de- 
pends upon  the  purpose  and  object  of  the  statute.  When  the 
learned  judges  of  the  United  States  say  that  the  bankrupt  law 
has  effaced  or  suspended  all  state  insolvent  laws,  they  certainly 
cannot  mean  a  statute  for  the  more  effectual  appropriation  of 
a  debtor's  property  to  satisfy  an  individual  debt.  Such  a  con- 
struction would  subvert  all  judgments  and  executions  for  debts, 
which  are  always  against  insolvents,  and  are  creatures  of  an 
insolvent  law,  if  these  words  be  taken  in  their  broadest  sense. 
(  Vide  2  Bell's  Conim.  162.)  Clearly,  therefore,  our  insolvent 
laws  are  no  farther  suspended  than  they  seek,  upon  notorious 
grounds,  to  seize  and  distribute  the  effects  of  the  debtor  among 
his  creditors  generally.  Such  is  not  the  effect  of  that  branch 
of  the  non-imprisonment  law  now  in  question.  It  refers  to  Art. 
6th  of  the  revised  statutes  concerning  voluntary  assignments  by 
impjisoned  debtors,  following  out,  in  the  main,  such  details  as 
are  there  prescribed,  and  finally,  it  is  true,  directing  a  dividend; 
but  this  cannot,  in  the  nature  of  things,  nor  indeed  by  the  pro- 
visions of  the  statute,  be  extended  beyond  the  particular  credi- 
tor or  creditors  by  whom  the  debtor  is  pursued.  We  have 
always  understood  the  provisions  in  question  as  no  more  than 
a  statute  execution  against  choses  in  action  and>  other  effects 
not  tangible  by  the  ordinary  fi.  fa.  The  statute  gives  the 
creditor  or  creditors  certain  process  by  which  he  or  they  may 
coerce  the  payment  of  a  debt  or  debts  for  which  the  debtor 
has  been  prosecuted.  (The  People  ex  rel.  Noble  v.  Abel,  3 
Hill,  109,  112  ;  Pract.  Directions,  Sfc.  under  thtffon  Imp.  Act, 


£80  GASES  IN  THE  SUPREME  COURT. 


Berthelon  v.  Belts. 


Pamph.  p.  15.)  We  accordingly,  at  the  last  January  term, 
on  a  prisoner  being  brought  up  for  discharge  under  the  6th 
article,  granted  the  motion,  notwithstanding  the  objection 
that  our  insolvent  laws  are  all  suspended.  Looking  at  the 
United  States  statute  as  we  should  to  a  state  insolvent  law — and, 
when  applied  to  voluntary  applicants,  it  is  no  more — we  then 
have  a  general  cessio  bonorum  indeed  j  but  one  which,  in  its 
own  nature,  and  according  to  the  general,  not  to  say  universal 
rule  of  construction,  can  have  no  effect  as  of  a  time  prior  to  the 
decree  by  which  it  was  effected.  Such  a  construction  would 
leave  the  assignment  to  Valentine  untouched.  Nor  do  I  per- 
ceive that  the  doctrine  of  relation  declared  in  13  Eliz.  ch.  7,  § 
2,  and  continued  in  the  subsequent  bankrupt  laws  of  England, 
is  expressly  enacted  by  the  U.  S.  bankrupt  law.  If  applicable, 
however,  whether  by  enactment  or  construction,  it  is  decisive 
against  the  present  motion.  (See  Balme  v.  Hutton,  1  Cromp. 
4r  Mees.  262,  269,  270  ;  Cooper  v.  Chitty,  1  Burr.  20,  30,  31, 
1  Keny.  Rep.  395,  417,  418,  S.  C.-}  Price  v.  Helyar,  1  Moore 
if  Payne,  541,  552,  4  Bing.  597,  S.  C.) 

Here  was  neither  a  right  of  lien  in  the  plaintiff,  nor  was  the 
interest  of  the  defendant  divested  until  the  assignment  of  the 
30th  of  August  made  pursuant  to  the  order  of  the  recorder. 
Five  days  before,  (August  25th,)  the  petition  in  bankruptcy 
was  lodged  in  the  U.  S.  district  court.  This  was,  no  doubt, 
an  act  of  bankruptcy  ;  perhaps  the  only  act  which  can  be  re- 
cognized as  such  under  the  voluntary  branch  of  the  statute. 
(See  St.  6  Geo.  4,  ch.  16,  §  6.)  Upon  the  best  consideration, 
however,  which  I  have  been  able  to  give  the  question,  I  have 
failed  to  discover  any  principle  in  our  statute  of  bankruptcy,  or 
in  the  nature  of  the  case,  by  wlhich  the  legislature  can  be  un- 
derstood to  have  intended  a  relation  covering  property  of  the 
bankrupt  which  he  did  not  own  at  the  time  of  the  bankrupt 
assignment,  excepting  such  as  he  might  have  fraudulently 
transferred  contrary  to  the  express  provisions  of  the  second 
section,  or,  at  most,  voluntarily  transferred  within  the  time  there 
mentioned,  the  transfer  being  bona  Jide.  Independently  of 


ALBANY,  FEBRUARY,  1849.  581 

Ex  partc  Fleming. 

these  provisions,  I  understand  the  act  as  indicating  quite  clearly 
that  the  bankrupt  assignment  shall  have  no  greater  effect  than 
any  other  general  transfer.    That  it  is  a  bankrupt  act,  certainly 
implies  no  relation.    This  is  plain,  not  only  from  the  necessity 
of  expressly  declaring  the  doctrine  in  the  English  statutes  j 
but  from  the  well  known  construction  which  has  always  been 
given  to  our  insolvent  laws.     These  are,  effectually,  but  bank- 
rupt laws  under  another  name.     In  this  view  of  the  matter  too, 
I  find  myself  confirmed  by  Mr.  Bicknell,  (Bickn.  on  Bankrupt- 
cy^ p.  38,  2d  ed.)  and  the  observations  of  Judge  Battle.     (Ex 
parte  Ziegenfuss,  2  IredelPs  JV.  Car.  Rep.  463,  468,  9.)     No 
case  was  cited  on  the  argument  as  holding  the  contrary.     In 
the  absence  of  a  clear  decision  by  the  United  States  court  de- 
claring that  a  transfer  of  a  debtor's  property  in  invitumj  made 
to  satisfy  his  debt  and  made  bonafide,  prior  to  a  decree  declar- 
ing the  debtor  a  bankrupt,  shall  be  overreached  by  such  a  de- 
cree, I  feel  no  serious  difficulty  in  saying  that  the  former  trans- 
fer should  prevail.     The  result  is  that  thfs  motion   must  be 

granted. 

Ordered  accordingly. 


Ex  parte  FLEMING  and  another. 

This  court  will  not  interfere  by  mandamus  to  compel  a  ministerial  officer  to  diw 
bey  an  injunction,  unless  it  appear  to  be  plainly  void  for  want  of  jurisdiction. 

Accordingly,  where  a  judge,  acting  under  the  non-imprisonment  act,  (Sets.  Laic* 
of  '31,  p-  396,  §3  ft  aeq.,)  made  out  a  warrant  to  commit  the  defendant  pursu- 
ant to  the  9th  section,  but,  being  afterwards  served  with  an  injunction  from  the 
district  court  of  the  United  States  restraining  further  proceedings  in  the  matter, 
refused  to  deliver  the  warrant  to  be  executed;  held,  that  this  court  would  not 
compel  the  delivery  by  mandamus,  no  want  of  jurisdiction  in  respect  to  the  in- 
junction appearing. 

The  court  will  not  enquire,  in  such  case,  whether  the  injunction  was  issued  im. 

providently. 

Semble,  that  an  injunction  to  restrain  the  execution  of  a  sentence  for  crime  mmy 
be  treated  as  a  nullity.     Per  COWEN,  J. 


582       CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Fleming. 

The  proceeding  contemplated  by  the  3d  section  of  the  non-imprisonment  act  is 

of  a  civil  and  not  a  criminal  nature.    Per  COWEN,  J. 
A  mandamus  is  a  prerogative  writ  which  this  court  may  issue  or  withhold  in  its 

discretion.    Per  COWEN,  J. 

MOTION  for  mandamus.  Proceedings  were  instituted  against 
one  Williams,  by  Fleming  and  Remington,  Before  G.  Law- 
rence, first  judge  of  the  Onondaga  C.  P.,  to  compel  satisfac- 
tion of  a  judgment  against  Williams  in  the  manner  prescribed 
by  the  non-imprisonment  act.  (Sess.  Laws  of  1831,  p.  396,  §3 
et  seq.)  After  a  hearing,  the  judge  decided  that  Williams 
was  guilty  of  fraud  within  the  2d  and  3d  subdivisions  of  the 
4th  section  of  the  act,  and  determined  to  commit  him  in  de- 
fault of  a  compliance  with  the  terms  of  the  10th  section. 
Williams  refused  to  comply,  and  the  judge  drew  up  and  sign- 
ed a  warrant  of  commitment,  which,  however,  he  refused  to 
deliver,  on  the  ground  that  he  had  been  served  with  an  injunc- 
tion from  the  district  court  of  the  United  States  restraining 
further  proceedings.  The  injunction  was  directed  to  "  Robert 
Fleming,"  (one  of  the  parties  to  the  proceeding  before  the 
judge,)  "  and  to  his  agents,  counsellors,  attorneys,  and  other 
officers  acting  under  him  or  by  his  direction,  and  each  and  ev- 
ery of  them."  A  motion  was  now  made  in  behalf  of  Fleming 
and  Remington  for  a  mandamus  commanding  the  judge  to  de- 
liver the  warrant. 

JL.  Fleming,  for  the  motion,  cited  Townsend  v.  Monellj  (10 
Wend.  577,)  and  Spencer  v.  Hilton,  (id.  608.) 

By  the  Court)  COWEN,  J.  It  is  certainly  impossible  for  me, 
on  the  case  stated,  to  see  expressly  that  this  injunction  was  prop- 
erly issued ;  but  it  is  not  my  duty  to  enquire  whether  it  was  or 
not.  I  am  not  prepared  to  deny  that,  under  circumstances,  it 
might  have  been  properly  issued ;  but  if  I  were,  it  is  enough  to 
know  that  Judge  Conkling  has  power  to  issue  and  enforce  the 
process  of  injunction  like  any  other  chancellor.  If  it  has  im- 
providently  issued,  I  am  bound  to  suppose  that  he  will  set  it 


ALBANY,  FEBRUARY,  1843. 


Ex  parte  Fleming. 


aside  on  motion.  He  having  jurisdiction,  it  is  the  same  thing  to 
me  as  if  it  had  issued  from  the  court  of  chancery  of  this  state. 
Before  I  should  be  warranted  in  compelling  a  ministerial  officer 
to  disregard  it,  I  must  be  satisfied,  in  the  strong  language  of 
counsel,  that  the  ordering  of  the  writ  was  a  mere  act  of 
usurpation  ;  in  other  words,  that  Judge  Conkling  wanted  juris- 
diction over  the  subject  matter ;  for  it  is  not  made  a  question 
that  he  has  it  over  the  process  and  over  every  person  residing 
in  his  district.  The  injunction  recites  that  the  proceeding  be- 
fore Judge  Lawrence  is  contrary  to  equity ;  and  if  it  did  not,  I 
am  bound  to  presume  in  favor  of  a  court  having  jurisdiction 
over  matters  of  equity,  that  the  judge  has  considered  and  act- 
ed on  such  a  matter. 

I  am  therefore  called  upon  to  order  the  doing  of  an  act  by 
Judge  Lawrence  which  would  be  in  direct  violation  of  a  valid 
injunction,  and  subject  him  to  punishment  accordingly.  It  is 
true  that  courts  of  law  do  not  hold  themselves  restrained  by 
injunction  from  proceeding  j(o)  nor  should  any  officer  be 
thus  restrained  while  acting  as  a  judge.  But  no  court  ought 
to  compel  either  parties  or  ministerial  officers  to  put  themselves 
in  positive  conflict  with  the  order  or  writ  of  another  court. 
(Burt  v.  Mapes,  I  Hill,  649,  651.) 

It  is  said  that  the  proceeding  before  Judge  Lawrence  was  to 
convict  of  a  crime  and  punish  it ;  and  that  a  court  of  equity 
has  no  jurisdiction  over  a  criminal  matter.  It  may  be  conce- 
ded that  an  injunction  against  an  execution  for  a  simple  crime 
would  be  a  nullity.  But  no  one  can  doubt  that  the  main  ob- 
ject of  the  statute  is  the  same  as  that  of  the  old  law  in  giving 
a  ca.  sa.  It  is  to  compel  payment  by  means  of  property  which 
a  fi.  fa.  cannot  reach.  The  great  point  is  the  civil  remedy. 
(10  Wend.  611 ;  Berthelon  v.  Belts,  ante,  p.  577.) 

Beside,  the  mandamus  is  a  prerogative  writ  which  we  have 
power  to  issue  or  withhold  according  to  our  discretion  ;  and, 


(a)  See  Kelly  T.  Cowing,  (ante,  p.  266.) 


584       CASES  IN  THE  SUPREME  COURT. 

Nelson  v.  Sharp. 

independently  of  other  questions,  it  would  be  very  indiscreet 
to  place  the  judge  between  two  fires,  as  we  should  do  by  grant- 
ing this  motion. 

Motion  denied. 


NELSON  vs.  SHARP. 

Evidence  of  a  parol  agreement  is  in  general  inadmissible  to  qualify  a  sealed  in- 

*  Etrument,  or  to  show  a  defeasance  different  from  that  which  the  instrument  itself 
expresses.  Per  COWEN,  J. 

The  practice  in  this  state  of  receiving  parol  evidence  that  an  absolute  deed  was  in- 
tended as  a  mortgage,  ought  not  to  extended.  Per  COWEN,  J. 

Where  a  defendant  moved  to  set  aside  a  judgment  entered  up  on  bond  and  warrant 
of  attorney,  on  the  ground  that  the  latter  were  given  hi  consideration  of  a  promise 
by  the  plaintiff  to  make  certain  advances  of  money  thereafter,  which  he  had 
wholly  failed  to  do  ;  held,  that  the  promise  being  a  sufficient  consideration  to  up- 
hold  the  judgment,  the  defendant's  remedy  was  by  action  for  a  breach  of  it,  and 
the  motion  was  therefore  denied. 

Even  had  the  arrangement  as  to  the  advance  of  money  been  in  the  nature  of  a  defea 
sance,  yet,  resting  in  parol  merely,  it  could  not  have  been  set  up  as  a  ground  for 
interfering  with  the  judgment.  Per  COWEN,  J. 

MOTION  to  set  aside  a  judgment  confessed  on  bond  and  war- 
rant of  attorney ;  or  for  a  rule  that  satisfaction  be  entered. 
Judgment  was  perfected  April  1st,  1840,  on  a  bond  in  the  penal- 
ty of  $3000,  conditioned  for  the  payment  of  money.  Neither 
the  bond  nor  warrant  of  attorney,  nor  any  writing  between  the 
parties,  declared  the  purpose  for  which  the  bond  was  given  or 
the  judgment  confessed  to  be  other  than  for  the  payment  of 
money.  But  the  defendant  made  affidavit  that,  in  fact,  the  ob- 
ject was  to  secure  the  plaintiff  against  moneys  which  he  prom- 
ised to  advance  in  order  to  redeem  certain  lands  sold  under  ex- 
ecutions against  the  defendant ;  but  which  he  had  wholly  failed 
to  do.  The  plaintiff's  affidavit,  on  the  contrary,  stated  that 
the  object  was  to  secure  him  against  certain  moneys  thereto- 
fore advanced  and  then  yet  to  be  advanced  for  the  board  of  the 
defendant  and  his  wife,  and  for  other  objects.  Various  affida- 


ALBANY,  FEBRUARY,  1843.  595 

Nelson  t.  Sharp. 

vits  were  read  on  both  sides  tending  to  confirm  or  rebut  the  af- 
fidavits of  the  respective  parties.  It  also  appeared  that,  on  the 
4th  of  June,  1842,  upon  accounting,  the  defendant  was  found  in- 
debted to  the  plaintiff  in  a  balance  of  $766,22,  for  moneys  had 
and  received  and  advanced.  This  the  defendant  now  admitted 
to  be  due  ;  but  insisted  that  these  moneys  had  no  connection 
with  the  judgment.  The  plaintiff  claimed  a  right  to  collect 
that  sum  by  execution,  besides  costs. 

L.  H.  Sandford,  for  the  defendant. 
5.  JV/.  Woodruff",  contra. 

By  the  Court,  COWEN,  J.  It  is  impossible  for  me  to  reduce 
the  claim  of  this  plaintiff  below  the  balance  struck  between  the 
parties  upon  their  accounting  in  1842  j  and  I  can  do  so  much 
only  because  the  plaintiff  agrees  that  this  is  the  sum  due  from 
the  defendant.  Independently  of  that,  I  know  not  of  any 
principle  on  which  I  could  cut  down  the  sum  below  the 
amount  in  the  sealed  condition  of  the  bond.  No  fraud,  duress, 
infancy,  usury  or  the  like,  is  pretended  as  the  reason  why  a 
money  bond,  with  a  warrant  of  attorney,  was  given  without  the 
usual  precaution  of  qualifying  it  by  a  sealed  declaration,  in  or 
out  of  the  condition,  that  it  was  for  a  purpose  other  than  that 
which  the  condition  expresses.  It  is  not  necessary  to  enquire 
whether  this  be  essential  in  order  to  affect  the  judgment  on  a 
bond  and  warrant  of  attorney,  though  I  must  not  be  considered 
as  admitting  that  a  bond  becomes  any  weaker  and  more  open 
to  an  attack  by  parol  evidence,  because  it  is  carried  into  judg- 
ment. If  not,  it  certainly  follows  that,  in  order  to  overcome 
the  language  of  the  instrument,  there  should  be  a  writing  of 
equal  degree  filed  and  made  matter  of  record  with  the  other 
papers  which  go  into  the  clerk's  office  as  a  foundation  for  the 
judgment.  This  would  seem  to  be  especially  important  where 
an  estoppel  by  judgment  is  added  to  that  of  the  bond.  The 
motion  is  not  made  by  creditors,  who,  I  admit,  might  complain 

VOL.  IV.  74 


586  CASES  IN  THE  SUPREME  COURT. 

Nelson  v.  Sharp. 

that  they  were  defrauded,  and  claim  to  be  let  into  an  enquiry 
concerning  the  true  consideration  upon  that  ground.  The  ob- 
jection is  made  by  the  defendant,  who  comes  to  set  up  a  parol 
defeasance  of  his  bond  and  judgment,  and  to  establish  it  by 
his  own  affidavit.  I  called  on  the  argument  for  a  case  in 
which  such  a  thing  was  ever  allowed,  None  has  been  fur- 
nished. I  do  not  deny  that  a  cotemporaneous  writing,  sealed  by 
the  parties,  though  not  filed,  might  have  done ;  as  the  courts 
formerly  received  a  deed  to  lead  the  uses  of  a  fine.  But  even 
this,  I  apprehend,  must  be.  set  down  as  an  exception.  I  am 
reminded  of  the  anomalous  practice  in  this  state  of  receiving 
parol  evidence  that  an  absolute  deed  was  intended  as  a  mort- 
gage. This  too  is  an  exception,  which  should  not  be  extended. 
There  is  difficulty  enough  in  its  standing  alone.  I  know  oi 
neither  principle  nor  practice  to  take  the  present  case  out  of 
the  general  rule,  which  is,  that,  to  qualify  a  sealed  instrument 
or  show  a  defeasance  different  from  what  the  instrument  itself 
contains,  the  party  shall  be  put  to  show  another  writing  be- 
tween the  same  parties  also  under  seal.  In  short,  the  defea- 
sance must  be  of  equal  dignity  with  the  principal  paper. 

I  have  looked  through  the  cases  for  setting  aside  warrants 
of  attorney  in  Bingham  on  Judgments.  They  are  all  either  of 
personal  disability,  or  where  the  warrant  was  actually  or  con- 
structively involuntary,  or  where  the  consideration  was  im- 
peachable  as  being  illegal  or  immoral ;  in  short,  where  the 
court  saw  that  the  bond  might  be  effectually  destroyed  or  va- 
ried in  the  regular  course  of  an  action.  But  who  ever  heard, 
in  such  case,  of  a  court  allowing  the  interpolation  of  a  parol 
defeasance  ;  in  other  words,  parol  evidence  to  contradict  the 
language  of  a  specialty  1 

Under  the  provisions  of  the  revised  statutes,  we  might  now 
perhaps  set  aside  the  judgment  to  let  in  a  defence  founded 
upon  a  partial  or  total  want  of  consideration.  I  mean  the  pro- 
visions which  allow  a  defence  on  this  ground  upon  its  being 
pleaded,  the  same  as  if  it  were  a  simple  contract. 

What  I  have  said  thus  far,  however,  I  desire  should  be  ta- 


ALBANY,  FEBRUARY,  1843.  5557 

Nelson  r.  Sharp. 

ken  for  no  more  than  a  refusal  to  concede  what  appeared  to 
me  on  the  argument,  and  still  appears,  from  the  degree  of  ex- 
amination I  have  bestowed  upon  the  question,  to  have  been  the 
assumption  of  a  facility  of  attack  on  judgments  confessed,  be- 
yond what  is  warranted  either  by  principle  or  authority. 

The  motion  must,  I  think,  be  denied  on  other  grounds. 
Were  I  to  receive  the  opposing  evidence,  and  were  I  convinced 
that  the  balance  between  the  conflicting  affidavits  and  proofs 
is  in  favor  of  the  defendant's  version  of  the  matter,  to  what 
would  it  amount  ?  To  no  more  than  that,  in  consideration  of 
a  judgment,  the  plaintiff  promised  to  do  a  certain  thing,  which 
he  has  omitted.  He  has  broken  his  parol  promise,  to  which 
I  am  required  to  give  the  effect  of  a  defeasance,  without  its 
being  in  its  own  nature  any  such  thing.  The  obvious  legal 
remedy  is  an  action.  Here  is  neither  condition  nor  fraud  j  but 
only  a  breach  of  promise.  Why  set  aside  the  judgment  1  To 
let  in  a  trial  upon  the  bond.  Why  do  that  when  the  defendant 
himself  admits  there  was  a  consideration — the  plaintiff's  prom- 
ise— by  which  the  bond  must  be  maintained.  No  other  reason 
can  be  imagined  than  a  wish  to  deprive  the  plaintiff  of  his 
agreed  means  of  indemnity  against  his  promise.  If  that  was 
not  fulfilled  by  redeeming  the  land,  the  plaintiff  was  doubtless 
considered,  at  the  time,  able  to  answer  the  damages.  The  very 
reason  why  he  took  the  judgment  as  a  security,  if  the  defen- 
dant's affidavits  be  correct,  was  probably  to  guard  against  the 
consequence  of  the  defendant's  insolvency.  Suppose  the  plain- 
tiff had  given  his  written  obligation,  the  case  would  have  been 
the  same.  It  is  like  an  exchange  of  acceptances  or  notes — one 
being  a  consideration  for  the  other,  and  so  both  of  them  bind- 
ing. The  effect  of  the  motion,  if  granted,  will  be  to  violate 
the  implied  understanding  of  the  parties,  even  on  the  defen- 
dant's own  showing. 

I  will  not  deny  that,  in  the  war  of  affidavits  opened  by  the 
case,  the  defendant  may  have  succeeded  both  as  to  number  and 
weight  on  the  question  of  what  was  the  real  consideration.  It 
is  enough,  however,  that  there  was  a  real  consideration  of  any 


588  CASES  IN  THE  SUPREME  COURT. 

Webb  v.  Bulger. 

kind,  even  though  I  may  think  it  was  inadequate.     Of  this  the 
parties  were  the  judges. 

That  there  was  lately  the  relation  of  guardian  and  ward  sub- 
sisting between  the  plaintiff  and  defendant,  and  so,  perhaps, 
a  constructive  fraud,  was  not  put  forward  in  the  papers  as  a 
ground  of  the  motion.  It  is  merely  alluded  to  as  an  incident 
in  the  account  of  the  transaction.  Neither  party  could  have 
thought  of  such  a  ground  being  brought  into  question  by  this 
motion  till  it  was  incidentally  suggested  towards  the  close  of 
the  argument. 

Motion  denied. 


WEBB  vs.  BULGER  &  BULGER. 

In  general,  there  can  be  but  one  judgment  record  in  the  same  cause. 

Where,  however,  in  an  action  of  assault  and  battery  against  two  defendants,  a 
verdict  was  rendered  in  favor  of  one  and  against  the  other,  whereupon  the  latter 
made  a  bill  of  exceptions,  and  the  former  perfected  judgment  for  his  costs,  the 
court  permitted  the  judgment  to  stand  on  condition  that  the  costs  of  entering  it 
up  should  be  deducted,  though  the  cause  was  still  pending  on  the  bill  of  excep. 
tions. 

ASSAULT  and  battery,  A  verdict  having  been  rendered  in 
this  case  against  one  of  the  defendants,  and  in  favor  of  the 
other,  the  latter  perfected  judgment  against  the  plaintiff  for 
costs,  including  the  costs  of  the  judgment,  and  the  other  defen- 
dant made  a  bill  of  exceptions. 

E.  JL.  Doolittle,  for  the  plaintiff,  moved  to  set  aside  the 
judgment,  on  the  ground  that  the  cause  was  still  pending  and 
undetermined,  and  that  but  one  judgment  record  could  be  made 
and  filed  in  the  same  cause. 

R.  W.  Peckham,  contra,  cited  Hallock  v.  Powell,  (2  Caines, 
216,  218  ;)  Day  v.  Hanks,  (3  T.  R.  654,  656  ;)  Canfield  v. 


ALBANY,  APRIL,  1843.  5gg 

Ex  parte  Newell. 

Gaylord,  (12  Wend.  236  ;)  2  R.  8.  617,  §  26  ;  Cutler  v. 
Goodwin,  (1  Str.  420;)  Kirk  v.  JYown/7,  (1  T.  R.  266  $) 
Braithwaite  v.  Bradford,  (6  T.  fl.  599.) 

JBy  Me  Cowrt,  NELSON,  Ch.  J.  The  defendant  who  obtained 
a  verdict  is  entitled  to  his  judgment  for  costs  ;  but  there  should 
be  but  one  record.  This  is,  however,  mere  matter  of  form  ; 
and  if  the  costs  of  entering  up  judgment  be  deducted,  the  plain- 
tiff cannot  be  prejudiced.  On  making  such  deduction,  the 
judgment  may  stand. 

Ordered  accordingly. 


Ex  parle  NEWELL,  receiver  &c. 

Where,  after  one  creditor  had  redeemed  lands  sold  under  af.fa.,  a  second  credi- 
tor, with  a  view  of  redeeming  from  the  first,  paid  unconditionally  to  the  sheriff 
the  requisite  amount,  but  immediately  thereafter  served  an  injunction  in  his  own 
favor  restraining  the  sheriff  from  paying  it  over ;  held,  nevertheless,  that  he  was 
entitled  to  the  sheriff's  deed. 

REDEMPTION  of  lands  sold  on  execution.  On  the  4th  of  De- 
cember, 1841,  the  sheriff  of  Erie  sold  certain  lands  in  Buffalo 
on  two  judgments  against  Elisha  C.  Hickcox,  one  in  favor 
of  Samuel  Stevens,  and  the  other  in  favor  of  James  Brisbane ; 
and  Brisbane  became  the  purchaser  at  $1950.  On  the  23d  of 
February,  1843,  Samuel  H.  Addington,  having  three  judg- 
ments against  Hickcox  amounting  to  about  $4800,  redeemed 
and  became  the  purchaser  of 'the  land,  by  presenting  the  ne- 
cessary papers  and  paying  to  the  sheriff  the  amount  of  Bris- 
bane's bid  with  interest,  amounting  to  $2116,50.  There  was 
a  judgment  against  Hickcox  in  favor  of  the  City  Bank  of  Buf- 
falo which  was  older  than  either  of  those  on  which  Addington 
redeemed  ;  and,  on  the  1st  of  March,  1843,  George  Newell,  re- 
ceiver of  the  City  Bank,  redeemed  from  the  sale  by  presenting 
the  necessary  papers  and  paying  to  the  sheriff  the  amount  of 


590  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Newell. 

Brisbane's  bid  with  interest — $2120,63.  On  the  third  day  of 
the  same  month,  Addington  again  went  to  the  sheriff  for  the 
purpose  of  redeeming  from  Newell,  and  paid  to  the  sheriff  the 
amount  claimed  to  be  due  on  the  judgment  in  favor  of  the  City 
Bank,  being  $1642.  Previous  to  paying  the  money,  Adding- 
ton had  filed  a  bill  against  Newell  in  the  court  of  chancery,  al- 
leging that  the  bank  judgment  had  been  satisfied,  and  obtained 
an  injunction  forbidding  the  sheriff  to  pay  over  to  Newell  the 
money  which  Addington  might  pay  to  redeem,  until  the  fur- 
ther order  of  the  court  of  chancery.  Addington  first  paid  the 
money  to  the  sheriff  and  took  his  receipt  for  the  same,  and  im- 
mediately thereafter  served  the  injunction  on  the  sheriff,  for- 
bidding his  paying  over  the  money  to  Newell.  The  sheriff, 
being  of  opinion  that  Addington  had  properly  redeemed,  exe- 
cuted a  deed  to  him  on  the  sixth  of  March.  Newell  had  pre- 
viously given  notice  to  the  sheriff  and  to  Addington  that  he 
should  claim  the  deed,  on  the  ground  that  Addington  had  not 
redeemed. 

E.  F.  Smith  fy  T.  Burwell  now  moved  for  a  mandamus  to 
the  sheriff,  commanding  him  to  execute  a  deed  to  Newell  as 
receiver.  They  insisted  that,  in  consequence  of  the  service  of 
the  injunction,  there  was  no  redemption  by  Addington.  It 
was  like  a  conditional  or  qualified  tender,  or  offering  money 
with  one  hand,  and  then  snatching  it  away  with  the  other. 

E.  G.  Spalding  fy  D.  Cady  opposed  the  motion. 

By  t/ie  Court,  BRONSON,  J.  Whether  the  injunction  was 
properly  issued  or  not,  is  a  question  for  the  court  of  chancery. 
Assuming  that  it  was  regular,  and  that  the  money  is  stayed  in 
the  hands  of  the  sheriff,  we  are  still  of  opinion  that  there  was 
a  good  redemption  by  Addington.  He  made  an  unconditional 
payment  of  the  amount  of  the  bank  judgment,  and  the  sheriff 
received  and  receipted  the  money  before  the  injunction  was 
served.  The  redemption  was  then  complete,  and  the  subse- 


ALBANY,  APRIL,  1843.  591 


9.  Aflun. 


quent  service  of  process  to  stay  the  money  in  the  hands  of  the 
sheriff  could  not  undo  what  had  already  been  well  done.  It  is 
not  like  the  case  of  a  tender  trammelled  with  conditions,  or  an 
offer  of  payment  without  parting  with  the  money.  Addington 
put  the  money  entirely  beyond  his  own  control.  The  sheriff 
received  and  now  holds  it  for  Newell,  and  is  answerable  for 
its  safe  keeping  in  the  same  manner  as  though  the  injunction 
had  not  been  served.  Should  the  chancery  suit  be  decided  in 
favor  of  the  defendant,  or  the  injunction  be  dissolved,  Newell 
will  then  receive  the  full  amount  of  his  judgment ;  and  he  can 
only  fail  of  obtaining  the  money  because  a  court  having  cogni- 
zance of  the  matter  may  decide  that  the  judgment  had  been 
satisfied  prior  to  the  redemption. 

The  money  which  Newell  paid  on  redeeming  from  Brisbane 
is  in  the  sheriff's  hands,  ready  for  Newell  whenever  he  chooses 
to  ask  for  it.  The  sheriff  also  has  the  money  to  pay  the  bank 
judgment,  which  Newell  will  receive  in  due  time ,  unless  it 
should  be  found  that  the  judgment  had  been  satisfied,  and  so 
•was  not  a  lien  on  the  land. 

Motion  denied. 


LARMON  vs.  AIKEN  and  another. 

Where  a  writ  of  error  to  the  common  pleas  was  brought  after  Jane  let,  1840, 
though  the  judgment  sought  to  be  reversed  was  rendered  before,  held,  that  the 
costs  upon  the  writ  must  bo  taxed  according  to  the  rates  established  by  the  act 
of  May  14th,  1840. 

COSTS.  Aiken  and  another  sued  Larmon  before  a  justice,  and 
recovered  a  judgment.  On  appeal  to  the  C.  P.,  judgment  was 
again  recovered  against  Larmon  prior  to  June  1st,  1840.  After 
that  day,  Larmon  brought  a  writ  of  error  in  this  court,  where 
the  judgment  was  affirmed.  The  defendants  in  error  taxed 
their  costs  on  the  writ  of  error  at  the  rates  given  by  the  old  fee 
bill. 


592  CASES  IN  THE  SUPREME  COURT. 


Park  v.  Moore. 


JV*.  Hill,  Jr.,  moved  for  a  relaxation  on  the  ground  that  costs 
should  have  been  taxed  at  the  rates  established  by  the  act  of 
1840.  (Stat.  '40,  p.  327.) 

H.  Z.  Hayner,  contra,  said  a  writ  of  error  was  for  some 
purposes  a  continuation  of  the  original  action,  and  as  that  was 
commenced  prior  to  June  1st,  1840,  the  case  was  saved  from  the 
operation  of  the  act  of  1840  by  the  38th  section. 

By  the  Court,  BRONSON,  J.  We  think  the  costs  of  the  writ 
of  error  should  have  been  charged  and  taxed  according  to  the 
rates  established  by  the  act  of  1840. 

Motion  granted. 


and  another  vs.  MOORE  and  another. 


Where  a  defendant,  after  suit  brought,  obtained  a  decree  for  his  discharge  as  a 
bankrupt,  the  court  permitted  the  plaintiff  to  discontinue  without  costs,  though  a 
certificate  of  the  defendant's  discharge  had  not  yet  been  granted. 

H.  Everts  moved  that  the  plaintiffs  have  leave  to  discontinue 
without  costs.  After  this  suit  was  commenced,  the  defendants 
made  application  for  discharge  under  the  bankrupt  act,  and 
both  of  them  were  decreed  and  declared  bankrupts  by  the  dis- 
trict court  of  the  U.  S.,  but  neither  had  yet  obtained  his  certifi- 
cate of  discharge. 

H.  H.  Martin,  contra. 

By  the,  Court,  BRONSON,  J.  When  the  defendant,  after  suit 
brought,  obtains  a  discharge  under  an  insolvent  law,  the  plain- 
tiff will  be  allowed  to  discontinue  without  costs.  (1  John.  R. 
143  ;  2  id.  294  ;  18  id.  252  ;  2  Cowen,  503  ;  8  id.  121  j  1 


ALBANY,  APRIL,  1848.  593 

The  People  r.  Sly. 

Wend.  91,2;  1  Caines,  116.)  But  the  motion  will  not  be 
granted  unless  the  defendant  has  obtained  his  discharge.  (Col- 
lins v.  Evans,  6  John.  333.)  The  reason  for  this  I  take  to  be, 
that  the  court  will  not  try  the  question  of  insolvency  on  affida- 
vits. The  plaintiff  is  not  relieved  on  the  ground  that  the  de- 
fendant may  defeat  the  action  by  pleading  the  discharge  ;  but 
on  the  ground  that  the  discharge  affords  conclusive  evidence  of 
the  defendant's  inability  to  pay.  (Honnewell  v.  Burns,  8  Cowen, 
121  ;  Merritt  ads.  Men,  1  Wend.  91.)  Here,  both  of  the 
defendants  have  solemnly  declared  themselves  bankrupts,  and 
•we  have  besides  conclusive  evidence  of  the  fact  in  the  decree 
of  a  court  of  competent  jurisdiction.  Although  the  defendants 
have  not  obtained  their  certificates,  the  case  falls  within  the 
principle  of  those  in  which  the  plaintiff  has  been  allowed  to 
discontinue  without  costs. 

Motion  granted. 


THE  PEOPLE  ex  rel.  SEWARD  vs.  SLY  and  others. 

Where  a  road  district  was  formed  from  parts  of  two  districts,  and  was  afterwards 
ordered  to  be  discontinued  by  the  commissioners  of  highways ;  held,  that  the  or. 
der  was  valid,  though  it  did  not  expressly  provide  for  embracing  the  territory 
to  which  it  related  within  any  other  road  district,  the  effect  being  to  restore  the 
two  districts  to  their  original  limits. 

ROAD  district  number  83  in  the  town  of  Warwick,  Orange 
county,  was  formed  from  parts  of  road  districts  number  37  and 
64.  At  a  meeting  of  the  commissioners  of  highways  of  the 
town  in  March,  1840,  held  for  the  purpose  of  deciding  upon 
applications  to  alter  the  districts,  they  made  an  order  that  dis- 
trict number  83  be  discontinued.  After  the  annual  town  meet- 
ing in  1842,  the  relator  applied  to  the  justices  to  appoint  an 
overseer  of  highways  for  district  number  83,  on  the  ground 
that  the  town  had  neglected  to  appoint  one.  (1  JR.  S.  347,  § 

VOL.  IV.  75 


594  CASES  IN  THE  COURT  OF  ERRORS. 

The  People  ».  Sly. 

31.)  The  justices  refused  to  appoint,  for  the  reason,  among 
others,  that  there  was  no  such  district.  These  facts  appeared 
on  the  return  to  an  alternative  mandamus  directed  to  the  jus- 
tices requiring  them  to  appoint  or  show  cause,  &c. 

Ji.  Taber,  for  the  relator,  now  moved  for  a  peremptory  writ. 
He  insisted  that  although  the  commissioners  had  power  to  alter 
the  districts,  they  were  bound  to  district  the  whole  town,  and 
could  not  leave  a  particular  road  out  of  the  limits  of  any  dis- 
trict. (1  R.  S.  501,  §  1,  sub.  5.) 

R.  J.  Hilton,  contra. 

By  the  Court,  BRONSON,  J.  The  effect  of  discontinuing  dis- 
trict number  83  was,  I  think,  to  restore  the  original  limits  of 
the  two  districts  out  of  which  number  83  was  carved  j  and  if 
this  be  so,  the  power  of  the  commissioners  to  make  the  order 
cannot  be  doubted.  The  justices  were  therefore  right  in  re- 
fusing to  appoint  an  overseer  for  number  83,  as  there  was  no 
such  district. 

There  has  been  a  great  deal  of  controversy  about  the  "  Qua- 
ker creek  road,"  and  it  may  be  that  the  town  officers  have 
dealt  hardly  with  the  relator  :  but  I  do  not  see  that  he  has  any 
remedy  in  this  form. 

Motion  denied. 


ALBANY,  APRIL,  1843.  595 

Ehlc  t>.  Bingham. 


EHLE  vs.  BINGIIAM. 

An  affidavit  of  the  travel  and  attendance  of  witnesses  is  defective  unless  it  state  the 

name  and  place  of  residence  of  each  witness,  the  distance  travelled  by  him 

and  the  number  of  days  that  he  actually  attended. 
A  cause  having  been  noticed  for  trial  at  the  New- York  circuit,  was  placed  upon  the 

day  calendar,  where  it  remained  but  one  day ;  held,  that  witnesses  residing  in  the 

city  were  entitled  to  fees  for  one  day's  attendance  only. 
Fees  paid  to  witnesses  who  do  not  attend  in  obedience  to  a  subpoena,  cannot  be 

taxed  as  a  part  of  the  costs  in  the  cause  ;  the  remedy  of  the  'party  being  by  a 

suit  to  recover  back  the  money  paid. 

WITNESSES'  fees.  On  taxation  of  costs  for  the  New- York 
eircuit,  the  plaintiff  made  affidavit  that  the  following  persons 
were  subpoenaed  as  witnesses,  "  and  probably  travelled  the  dis- 
tance, and  actually  attended  as  witnesses  the  number  of  days 
as  hereinafter  stated,  viz.  :  S.  Wolcott  &c.  [naming  nine  indi- 
viduals jj  that  two  of  said  witnesses  reside  two  hundred  and 
thirty  miles  from  court,  and  attended  court  twenty  days  each  ; 
that  one  of  said  witnesses  resides  two  hundred  and  thirty  miles 
from  court  and  was  duly  subpoenaed,  and  five  dollars  paid 
towards  his  fees  to  him,  and  five  dollars  additional  fees  paid 
on  account  of  witness'  travelling  expenses  home  by  deponent 
on  his  way  to  New -York  as  a  witness  in  this  cause  ;  that  one 
of  said  witnesses  resides  one  hundred  and  twenty  miles  from 
court,  and  was  duly  subpoenaed  as  a  witness  in  this  cause  and 
his  fees  as  such  witness  to  said  city  paid,  as  appears  by  the 
admission  of  said  witness  duly  endorsed  in  his  own  handwriting 
upon  the  subpoena  hereto  annexed  ;  that  four  of  said  wit- 
nesses attended  court  twenty-six  days  each,  and  one  of  said 
witnesses  attended  eighteen  days  at  said  circuit."  The  five 
last  mentioned  witnesses  resided  in  the  city  of  New- York,  and 
it  appeared  that  the  cause  was  on  the  day  calendar  for  said  cir- 
cuit for  one  day  only.  The  defendant  objected  to  the  sufficien- 
cy of  the  affidavit.  The  taxing  officer  allowed  for  the  travel 
of  two  witnesses,  two  hundred  and  thirty  miles  eech,  $36,80, 


596  CASES  IN  THE  SUPREME  COURT. 

Ehle  v.  Bingham. 

and  for  the  attendance  of  those  witnesses,  twenty  days  each, 
$20.  For  the  five  witnesses  residing  in  New-York,  he  allowed 
only  one  day's  attendance  each  ;  and  he  rejected  the  claim  for 
fees  paid  to  the  witnesses  who  did  not  attend  the  circuit.  Both 
parties  moved  for  a  re-taxation  of  the  costs. 

j2.  Taber,  for  the  plaintiff. 

T.  B.  Mitchell  $  JV.  Hill,  Jr.  for  the  defendant. 

By  the  Court,  BRONSON,  J.  Charges  for  witnesses  cannot 
be  taxed,  without  an  affidavit  stating  the  distance  they  respec- 
tively travelled,  and  the  days  they  actually  attended.  (2  R.  S. 
653,  §  7.)  For  the  purpose  of  satisfying  this  requirement,  and 
detecting  any  false  swearing,  the  affidavit  should  state  the  name 
and  place  of  residence  of  each  witness,  the  distance  he  had  to 
travel  to  reach  court,  and  the  number  of  days  that  he  actually 
attended  as  a  witness  in  the  particular  cause.  No  other  rule 
will  effectually  guard  against  over  charges.  This  affidavit  was 
insufficient,  and  the  charges  for  the  travel  and  attendance  of 
the  two  witnesses,  amounting  to  $36,80,  were  improperly  al- 
lowed. 

Only  one  day's  attendance  was  allowed  for  each  of  the  city 
witnesses.  That  was  right,  both  on  the  ground  that  the  affi- 
davit was  defective,  and  because  the  cause  was  only  on  the  day 
calendar  for  a  single  day. 

The  fees  paid  to  witnesses  who  did  not  attend  were  properly 
disallowed.  (Booth  v.  Smith,  5  Wend.  107  ;  Anon.  3  Hill, 
457.)  The  plaintiff  can  recover  back  the  money  from  the  wit- 
nesses, and  a  penalty  besides,  unless  there  was  some  good  ex- 
cuse for  not  attending. 

The  plaintiff's  motion  for  a  re-taxation  must  be  denied,  and 
that  of  the  defendant  granted. 

Ordered  accordingly. 


ALBANY,  APRIL,  1843.  597 

Anonymota. 


ANONYMOUS. 

An  affidavit  of  service  of  papers  on  a  deputy  of  one  of  the  clerks  of  this  court,  in  tha 
clerk's  office,  is  good,  without  adding  that  the  clerk  was  absent. 

So,  of  an  affidavit  stating  service  on  a  clerk  of  one  of  the  clerks  of  the  court,  in 
his  office.  Note  (a). 

M.  T,  Reynolds  moved,  in  this  case,  upon  papers  which  were 
sworn  to  have  been  served  on  a  deputy  of  one  of  the  clerks  of 
the  supreme  court  (naming  the  deputy  and  clerk)  in  the  clerk's 
office  j  whereupon 

A.  Sheldon^  contra,  objected  that  the  proof  of  service  was 
insufficient,  it  not  appearing  that  the  clerk  was  absent.  But 

BRONSON,  J.  held  the  proof  sufficient. 

Motion  granted. (a) 

(a)  IN  ANOTHER  CASK,  decided  at  this  term,  the  affidavit  stated  that  the  papers 
were  served  on  a  clerk  of  J.  K.  P.,  one  of  the  clerks  of  the  supreme  court,  in  his 
office:  Held  sufficient 


ANONYMOUS. 

Where  the  papers  for  a  motion  are  properly  entitled,  an  affidavit  of  service  imme- 
diately following,  or  endorsed  upon  them,  though  not  itself  entitled,  is  sufficient 

IN  this  case,  the  papers  for  the  motion  were  properly  enti- 
tled, and  immediately  following  was  an  affidavit  of  service, 
which,  however,  was  not  entitled. 

P.  Cagger,  for  the  motion,  was  about  to  state  the  contents 
of  the  papers  ;  whereupon 


598  CASES  IN  THE  SUPREME  COURT. 


Matter  of  Faulkner. 


0.  S.  Srighamj  contra,  objected  that  they  could  not  be  used, 
by  reason  of  the  above  defect  in  the  affidavit  of  service.  But 

BRONSON,  J.,  overruled  the  objection,  observing  that  where, 
as  in  this  case,  the  affidavit  immediately  follows  the  papers  for 
the  motion,  or  where  it  is  endorsed  upon  them,  they  being 
properly  entitled,  it  is  sufficient,  though  not  itself  entitled.  It 
is  good  by  relation  to  the  entitling  of  the  principal  papers. 

Motion  granted. 


Matter  of  FAULKNER,  an  absconding  or  concealed  debtor. 

The  appointment  of  trustees  in  a  proceeding  against  an  absconding  or  concealed 
debtor,  under  2  R.  S.  p.  2  et  seq.,  does  not  preclude  him  from  raising  the  ques- 
tion whether  the  affidavits  upon  which  the  attachment  issued  were  sufficient  to 
give  the  officer  jurisdiction. 

Nor  will  the  debtor  be  precluded  even  though  he  have  previously  applied  for  and 
had  a  hearing  in  the  common  pleas,  pursuant  to  2  R.  S.  p.  9,  §  43. 

The  case  of  Hubbell  v.  Ames  (15  Wend.  372)  explained,  and  the  reporter's 
abstract  of  it  corrected. 

In  order  to  confer  jurisdiction,  the  affidavits  of  the  two  witnesses  required  by  2  R. 
S.  p.  3,  §  5  must  state  the  facts  and  circumstances  to  establish  the  grounds  of 
the  application ;  mere  information  and  belief  will  not  answer.  Per  BRON- 
SON, J. 

If,  however,  facts  and  circumstances  be  stated  tending  to  establish  the  grounds  of 
the  application  and  fairly  calling  on  the  officer  for  an  exercise  of  his  judgment 
upon  the  weight  of  the  evidence,  though  he  err  in  his  estimate  of  it,  the  proceed- 
ing will  not  be  void  for  lack  of  jurisdiction. 

ON  the  16th  of  April,  1842,  an  attachment  was  issued 
against  Faulkner,  as  an  absconding  or  concealed  debtor,  on 
the  application  of  Thomas  J.  Smith,  by  the  circuit  judge  of  the 
first  circuit.  On  the  26th  of  May  following,  Faulkner  pre- 
sented a  petition  to  the  judge  stating  that  he  was  not  an  ab- 
sconding or  concealed  debtor,  and  had  the  matter  referred  to 
the  determination  of  the  New- York  C.  P.  The  court  decided 
against  him  on  the  5th  of  September.  On  the  13th  of  October 


ALBANY,  APRIL,  1843.  599 

Matter  of  Faulkner. 

the  circuit  judge  appointed  trustees,  and  on  the  3d  of  Novem 
ber  he  reported  his  proceedings  to  this  court.  In  December 
the  debtor  made  a  motion,  upon  special  grounds,  to  set  aside 
the  appointment  of  trustees,  and  a  motion  was  made  against 
him  for  the  purpose  of  placing  certain  moneys  within  the  reach 
of  the  trustees.  (See  ante,  p.  30.) 

The  debtor  now  moved  that  the  attachment  and  all  subse- 
quent proceedings  be  set  aside  and  annulled  for  want  of  juris- 
diction in  the  circuit  judge,  and  for  irregularity  and  insufficien- 
cy in  the  affidavits  on  which  the  attachment  issued.  In  case 
this  should  not  be  granted,  he  then  asked  for  a  rehearing  in 
the  court  of  C.  P.  He  swore  that  the  affidavits  on  which  the 
attachment  issued  were  not  reported  to  the  C.  P.  by  the  circuit 
judge,  nor  were  they  filed  in  this  court  j  that  although  enqui- 
ry and  search  were  repeatedly  made  for  them,  they  could  not  be 
found  until  the  20th  of  February  last,  when  they  were  found 
in  the  office  of  the  circuit  judge.  The  grounds  on  which  the 
question  of  jurisdiction  is  made  are  sufficiently  stated  in  the 
opinion  of  the  court. 

J.  Rhoadesj  for  the  debtor. 
JV.  Hilly  Jr.  contra. 

By  the  Court,  BBONSON,  J.  It  is  said  there  was  not 
sufficient  evidence  before  the  circuit  judge  that  Faulkner  was 
an  absconding  or  concealed  debtor,  and  consequently  that  the 
officer  did  not  acquire  jurisdiction  to  issue  the  attachment. 
The  statute  declares  that  the  appointment  of  trustees  shall  be 
conclusive  evidence  that  the  person  was  a  concealed  or  abscond- 
ing debtor  within  the  meaning  of  the  act,  and  that  the  appoint- 
ment and  all  the  previous  proceedings  were  regular.  (2  R. 
S.  12 ,  §  62.)  Strong  and  comprehensive  as  this  language  un- 
doubtedly is,  it  is  settled  that  it  does  not  preclude  an  enquiry 
into  the  fact  whether  a  prima  facie  case  was  made  out  before 
the  officer  who  issued  the  attachment.  (Matter  of  Hurd,  9 


600  CASES  IN  THE  SUPREME  COURT. 


Matter  of  Faulkner. 


Wend.  465.)  There,  the  proceedings  were  against  administra- 
tors in  their  representative  character,  who  were  adjudged  not 
to  be  within  the  statute  ;  and  on  that  ground  the  attachment 
and  all  subsequent  proceedings  were  set  aside  by  this  court, 
although  trustees  had  been  appointed.  In  Hubbdl  v.  Jlmes^ 
(15  Wend.  372,)  the  question  came  up  collaterally,  and  it  was 
held  that  the  appointment  of  trustees  was  sufficient  to  show 
that  the  officer  had  jurisdiction  ;  but  it  was  not  held  to  be  con- 
clusive, as  is  erroneously  stated  in  the  reporter's  head  note. 

The  decision  in  the  Matter  of  Hurd  necessarily  affirms  that 
the  estoppel  created  by  the  62d  section  has  a  limit,  and  that  it 
does  not  extend  to  the  question  whether  a  pnma  facie  case  was 
made  out  before  the  officer  in  the  first  instance.  This  limita- 
tion may,  I  think,  be  successfully  maintained,  without  over- 
throwing the  estoppel  altogether.  Assuming  that  the  attach- 
ment was  properly  issued,  the  statute  goes  on  to  provide,  that 
the  debtor  may  come  in  at  any  time  before  the  appointment  of 
trustees,  and  allege  that  he  was  not  an  absconding  or  concealed 
debtor ;  and  the  matter  is  then  to  be  tried  by  this  or  some  other 
court.  The  debtor  thus  has  an  opportunity  to  produce  rebut- 
ting evidence  for  the  purpose  of  overthrowing  the  prima  facie 
case  on  which  the  attachment  issued.  If  the  decision  is  in  his 
favor,  the  warrant  is  discharged  j  otherwise  the  proceedings  go 
on.  (§  43  to  50.)  If  the  debtor  does  not  come. in  and  deny  the 
allegations  on  which  the  warrant  issued,  or  if  he  appears  and 
the  matter  is  adjudged  against  him,  trustees  are  to  be  appointed. 
(§  58.)  And  then,  having  either  produced  his  rebutting  evi- 
dence, or  having  neglected  the  proper  opportunity  for  doing  so 
he  is  afterwards  precluded  from  adducing  evidence  to  show  that 
he  was  not  an  absconding  or  concealed  debtor.  So  far  the 
estoppel  created  by  the  62d  section  goes,  and  there  it  ends 
It  does  not  touch  the  question  whether  the  proceeding  was  not 
utterly  groundless  at  the  first,  taking  the  case  as  it  appeared  on 
the  ex  parte  application  of  the  creditor.  That  question,  for 
aught  that 'I  can  see,  must  always  remain  open  to  the  debtor  ; 


ALBANY,  APRIL,  1843. 


Matter  of  Faulkner. 


for  if  the  officer  had  no  jurisdiction)  the  whole  proceeding  is 
coram  non  judice. 

It  is  said  that  the  debtor  is  concluded  from  raising  this  ques- 
tion in  consequence  of  having  applied  to  the  judge  for  a  hear- 
ing in  the  common  pleas,  and  having  had  that  hearing.  (§  43.) 
But  this  was  not  a  proceeding  in  personam,  or  an  action  where  a 
voluntary  appearance  would  be  sufficient  to  confer  jurisdiction 
over  the  person  although  not  regularly  served  with  process. 
It  was  a  proceeding  in  rem,  and  the  debtor  only  came  in  to 
save  his  property.  It  was  not  a  case  where  there  could  be  any 
such  thing  as  a  technical  appearance.  (See  per  Parsons,  C.  J. 
in  Bissell  v.  Briggs,  9  Mass.  R.  469  j  Pawling  v.  Bird,  13  John. 
192,  207  ;  Cowen  $  HUPs  Notes  to  Phil.  Ev.  908, 1024.)  He 
undertook  to  prove  that  he  was  not  an  absconding  or  concealed 
debtor,  for  the  purpose  of  having  the  warrant  discharged.  (^ 
43  to  48.)  But  I  do  not  see  how  that  could  confer  jurisdiction 
on  the  judge  who  had  previously  issued  the  warrant. 

This  brings  us  to  the  question  whether  such  a  prima  facie 
case  was  made  out  before  the  circuit  judge  as  to  give  him  ju- 
risdiction. No  exception  is  taken  to  the  application  and  affi- 
davit made  by  the  creditor  ;  (§3,  4  j)  but  it  is  insisted  that  the 
affidavit  of  the  two  witnesses  was  insufficient.  They  must 
state  the  facts  and  circumstances  to  establish  the  grounds  on 
which  the  application  is  made.  (§5.)  It  is  not  enough  for 
them  to  say  they  are  informed  and  believe  that  the  debtor  has 
secretly  departed  from  the  state,  or  keeps  himself  conceale. 
therein,  with  intent  to  defraud  his  creditors  or  to  avoid  the  ser- 
vice of  civil  process.  They  must  give  the  facts  and  circum- 
stances which  induce  the  belief,  to  the  end  that  the  officer  may 
judge  of  the  evidence.  (Ex  parte  Haynes,  18  Wend.  611,  and 
cases  cited  ;  and  see  Ex  parte  Robinson,  21  Wend.  672  ;  John- 
son v.  Moss,  20  id.  145.)  But  these  witnesses  did  state  facts 
and  circumstances  tending  to  prove  that  Faulkner  had  depart- 
ed from  the  state,  or  kept  concealed  in  it  with  intent  &c. 
They  state  that  they  were  acquainted  with  him  ;  that  he  had 
been  the  proprietor  of  a  line  of  stages  kept  at  a  specified  place 

VOL.  IV.  76 


602  CASES  IN  THE  SUPREME  COURT. 

Matter  of  Faulkner, 

in  the  city ;  that  about  six  weeks  before,  he  sold  out  his  stages 
and  horses  and  suddenly  broke  up  his  business,  and  thereafter 
departed  from  or  kept  concealed  in  the  city  ;  and  that  after  he 
sold  out,  his  goods  were  sold  by  his  landlord  for  the  pay- 
ment of  rent.  Before  the  sale  by  Faulkner  they  saw  him  fre- 
quently ;  but  since  that  time  they  had  not  seen  him  at  all. 
And  they  add,  that  it  was  generally  understood  and  believed 
that  Faulkner  was  keeping  out  of  the  way  to  avoid  his  credit- 
ors, and  that  he  was  concealed  within  this  state  or  had  abscond- 
ed from  it,  for  the  purpose  of  defrauding  his  creditors.  Now, 
although  the  evidence  was  far  from  being  conclusive,  still  it 
had  a  legal  tendency  to  make  out  a  case,  in  all  its  parts,  for 
the  issuing  of  an  attachment.  Enough  was  proved  to  call 
upon  the  officer  for  the  exercise  of  his  judgment  upon  the 
weight  and  importance  of  the  evidence  ;  and  if  he  erred  in  the 
decision  of  a  question  thus  fairly  presented,  the  error  would 
not  be  fatal  to  the  proceedings.  It  is  only  when  there  is  a  to- 
tal want  of  evidence  upon  some  essential  point,  that  the  officer 
will  fail  to  acquire  jurisdiction. (a) 

The  motion  for  a  re-hearing  in  the  C.  P.  comes  quite  too 
late ;  and  besides,  I  do  not  see  thai  we  have  any  power  to  or- 
der it. 

Motion  denied. 


(a)  See  Council  v.  Lassells,  (20  Wend.  77,)  and  the  dissenting  opinion  of  Cow- 
en  J.  in  that  case. 


ALBANY,  APRIL,  1849. 


Anonymous. 


ANONYMOUS. 

Where  the  plaintiff  intended  to  bring  replevin  in  the  detintt,  but,  by  mistake  of  his 
attorney,  the  charge  of  detaining  was  preceded  in  the  writ. by  words  imputing 
an  unlawful  taking  also,  he  was  allowed  to  amend  on  terms  by  striking  oat 
those  words,  even  after  the  writ  had  been  executed. 

AMENDMENT  of  writ  of  replevin.  The  complaint  in  the  writ 
was,  that  the  defendant  "  has  taken  and  does  unjustly  detain" 
the  property  in  question.  It  had  been  executed,  but  nothing 
further  done  in  the  cause  j  and  now 

M.  T.  Reynolds,  for  the  plaintiff,  moved  for  leave  to  amend 
by  striking  out  the  words  "  has  taken  and."  He  read  an  affi- 
davit showing  that  the  plaintiff  intended  to  bring  replevin  in 
the  detinetj  and  that  the  words  imputing  an  unlawful  taking 
were  inserted  through  a  mere  oversight  or  mistake  of  his  at- 
torney. 

A.  L.  Brovm,  contra. 

BRONSON,  J.  allowed  the  amendment  to  be  made,  on  the 
plaintiff  paying  the  costs  of  the  motion,  giving  a  new  replevin 
bond  nunc  pro  tune,  and  the  sureties  therein  justifying. 

Rule  accordingly. 


604  CASES  IN  THE  SUPREME  COURT. 

Millard  ».  Robinson. 


MILLARD  vs.  ROBINSON. 

A  notice  of  rent  being  due,  given  by  a  landlord  to  an  officer  pursuant  to  1  R.  S, 
746,  §  12,  is  in  the  nature  of  process,  and  should  state  facts  enough  to  show 
that  the  landlord  is  entitled  to  a  preference  over  the  execution  creditor.  Per 
BRONSON,  J. 

Accordingly,  where  the  goods  of  R.  were  taken  in  execution,  and  the  notice  showed, 
among  other  tilings,  that  the  premises  on  which  the  seizure  was  made  were 
in  the  occupation  of  R.  and  others,  and  that  a  specified  amount  was  duo 
to  L.,  the  landlord,  for  a  balance  of  one  year's  rent  of  said  premises  &o.,  but  did 
not  show  R.  to  be  the  tenant  of  L. ;  held,  that  the  notice  was  defective,  and  that 
the  officer  might  therefore  disregard  it. 

LANDLORD  and  sheriff.  Jacob  L.  Lane  leased  a  brick  store  in 
Troy  to  Henry  A.  Benton  for  one  year  from  May  1,  1842,  at 
the  annual  rent  of  $500,  payable  quarterly.  On  the  1st  of 
August,  1842,  Benton  sold  his  goods  to  the  defendant  Robin- 
son, who  entered  and  occupied  the  store.  Other  persons  oc- 
cupied parts  of  the  building,  but  upon  what  terms  did  not  ap- 
pear. The  sheriff  having  levied  the  execution  in  this  cause 
upon  the  goods  of  the  defendant  in  the  store,  Lane,  on  the  3d 
of  March,  1843,  gave  notice  to  the  sheriff,  as  follows  :  "  Take 
notice  that  there  is  due  and  payable  to  me  as  landlord  of  that 
certain  brick  store,  situate  &c.,  and  now  in  the  occupation  of 
Robert  C.  Robinson  and  others,  the  sum  of  $401,64  for  a  bal- 
ance of  one  year's  rent  of  said  premises,  commencing  &c. ; 
and  you  will  further  take  notice  that  the  above  sum  is  claimed 
by  me  as  landlord  to  be  due,  and  that  you  are  required  to  pay 
and  satisfy  the  same  out  of  the  goods  and  chattels  seized  or 
levied  upon  by  you  on  said  premises."  The  sheriff  sold  the 
goods  for  more  than  enough  to  pay  the  rent,  but  not  for 
enough  to  satisfy  the  execution ;  and  Lane  now  moved  that 
the  sheriff  pay  to  him  the  amount  of  the  rent  due.  The  mo- 
tion was  resisted  on  the  ground,  among  others,  that  the  notice 
was  insufficient  because  the  tenant  was  not  named. 


ALBANY,  APRIL,  1843.  (JQ5 


Millard  r.  Robinaon. 


M.  T.  Reynolds,  for  the  landlord. 
J.  A.  Millard  &  JV.  Bill,  Jr.  contra. 

By  the  Court,  BROXSOX,  J.  By  the  notice  given  to  the 
sheriff,  Lane  claimed  as  landlord,  and  stated  that  the  store  was 
in  the  occupation  of  Robinson  and  others ;  but  he  did  not  state 
that  Robinson  was  his  tenant.  So  far  as  appears  by  the  notice, 
Robinson  may  have  come  in  as  under-tenant,  or  even  in  hostil- 
ity to  Lane's  title  j  and  in  either  of  those  cases  there  was  no 
remedy  by  notice.  The  landlord  can  only  gain  a  preference 
over  an  execution  creditor  by  either  distraining  before  the  exe- 
cution is  levied,  when,  with  few  exceptions,  the  goods  of  any 
person  found  on  the  demised  premises  may  be  taken  j  or  by 
giving  notice  after  a  levy,  where  the  defendant  in  the  execu- 
tion is  his  tenant.  (Brown  v.  Fay,  6  Wend.  392 ;  and  see 
Frisbey  v.  Tkayer,  25  id.  396 ;  Coles  v.  Marquand,  2  Hill, 
447  ;(a)  Slocum  v.  Clark,  id.  475.)  The  notice  is  in  the  na- 
ture of  legal  process,  under  which  the  goods  are  to  be  sold  to 
pay  the  rent,  as  well  as  the  judgment ;  (1  R.  S.  746,  §  12  to 
16 ;)  and  the  landlord  should  state  facts  enough,  assuming 
them  to  be  true,  to  show  that  he  is  entitled  to  a  preference 
over  the  execution  creditor.  We  think  the  notice  was  insuffi- 
cient, and  that  the  landlord's  claim  must  fail  upon  that  ground 
It  is  of  course  unnecessary  to  examine  the  other  questions 

made  on  the  argument. 

Motion  denied. 


(a)  In  connection  with  Colea  v.  Marquand,  BCC  the  case  of  Acker,  theriff  «J*.  r. 
WilhfreU,  (ante,  p.  112.) 


606        CASES  IN  THE  SUPREME  COURT. 


The  People  v.  Akin. 


THE  PEOPLE  ex  rel.  LODOWICK  vs.  AKIN,  judge  of  Dutchess  C.  P. 

An  order  being  made  for  the  commitment  of  a  debtor  under  the  9th  section  of  the 
non-imprisonment  act,  he  presented  to  the  officer  making  it  an  inventory  of  his 
estate  &c.  pursuant  to  the  third  subdivision  of  the  10th  section,  for  the  purpose 
of  obtaining  a  discharge.  The  application  was  opposed  by  the  creditor  and  de- 
nied, on  the  ground  that  the  debtor's  proceedings  were  not  just  and  fair  and  that 
he  was  chargeable  with  actual  fraud.  The  debtor  was  then  committed  to  jail 
and  afterwards  applied  for  a  discharge  to  another  officer  under  the  12th  section 
of  the  act.  Held,  that  the  debtor  was  estopped  from  trying  the  same  matter 
over  again  so  long  as  the  first  decision  remained  unreversed,  and  that  the  offi- 
cer's order  dismissing  the  second  application  for  that  reason,  was  right. 

MANDAMUS.  Dolson  &  Keyes  commenced  a  suit  in  this 
court  against  Lodowick,  the  relator,  for  a  demand  due  upon 
contract,  and  afterwards  applied  to  John  Brush,  a  supreme 
eourt  commissioner,  for  a  warrant  to  arrest  Lodowick  pursuant 
to  the  non-imprisonment  act,  (Stat.  1831,  p.  396,)  alleging 
that  he  had  property  or  rights  in  action  which  he  fraudulently 
concealed  ;  or  had  assigned,  removed  or  disposed  of  his  proper- 
ty with  intent  to  defraud  his  creditors  j  (§  4,  sub.  2,  3  ;)  and 
they  produced  affidavits  in  support  of  the  allegations.  A  war- 
rant issued,  and  Lodowick  was  brought  before  the  commis- 
sioner on  the  23d  of  December,  1842.  He  neglected  and  refused 
to  controvert  the  facts  and  circumstances  on  which  the  war- 
rant issued,  and  the  commissioner  thereupon  decided  that  he 
should  be  committed  to  prison.  To  prevent  the  commitment, 
Lodowick  proposed  to  make  an  assignment  of  his  proper- 
ty, and  he  presented  an  inventory  and  account  pursuant  to  § 
10,  sub.  3.  Dolson  and  Keyes  opposed  the  application,  and 
after  hearing  the  proofs  and  allegations  of  the  parties,  the 
commissioner,  on  the  23d  of  January,  1843,  decided  that  the 
proceedings  of  Lodowick,  on  his  application  for  a  discharge, 
were  not  just  and  fair,  and  that  he  had  concealed,  removed, 
and  disposed  of  a  portion  of  his  property  with  intent  to  defraud 
his  creditors.  The  commissioner  therefore  refused  to  order  an 


ALBANY,  APRIL,  1843. 


The  People  «.  Akin. 


assignment,  and  issued  a  warrant  committing  Lodowick  to  the 
jail  of  the  county  until  he  should  be  discharged  according 
to  law. 

On  the  15th  of  February  following,  Lodowick  presented  to 
Judge  Akin  a  petition,  account  of  creditors  and  inventory, 
and  applied  for  a  discharge  from  imprisonment.  Dolson  and 
Keyes,  having  had  fourteen  days  previous  notice,  appeared  and 
opposed  the  application  ;  and  on  their  motion  the  judge  dis 
missed  the  application,  on  the  ground  that  the  same  matter  had 
been  adjudicated  by  the  commissioner,  and  his  decision  remain- 
ed in  full  force.  An  alternative  mandamus  thereupon  issued 
requiring  the  judge  to  proceed  and  adjudicate  upon  the  appli- 
cation, or  show  cause  &c.  On  a  return  stating  the  foregoing 
facts, 

L.  Maisonj  for  the  relator,  now  moved  for  a  peremptory 
mandamus. 


A.  Taberj  contra. 

By  the  Court,  BRONSON,  J.  After  a  commitment  had  been 
ordered  in  pursuance  of  the  ninth  section  of  the  non-imprison- 
ment act,  Lodowick  applied  to  the  commissioner  for  a  dis- 
charge in  pursuance  of  the  third  subdivision  of  the  tenth  sec- 
tion. After  a  full  investigation,  the  application  was  denied  on  the 
ground  that  the  proceedings  on  the  part  of  the  petitioner  were 
not  just  and  fair,  and  that  he  was  chargeable  with  actual  fraud. 
(§  12,  16.)  I  see  no  reason  why  this  should  not  have  the  same 
effect  as  it  would  if  the  debtor  had  been  first  committed  to  jail, 
and  had  then  applied  for  a  discharge  under  the  12th  section. 

This  brings  us  to  the  question  whether  the  debtor  can  repeat 
his  application  for  a  discharge  at  pleasure,  or  whether,  when 
the  matter  has  been  once  decided  against  him,  it  is  to  be  con- 
sidered as  res  adjudicata  so  long  as  the  first  determination  re- 
mains in  force.  It  does  not  appear  that  there  was  any  substan- 
tial difference  between  the  papers  presented  to  the  judge,  and 
those  which  had  previously  been  before  the  commissioner  j  and 


608       CASES  IN  THE  SUPREME  COURT. 


we  think  the  relator  is  estopped  from  trying  the  same  matter  a 
second  time,  so  long  as  the  first  decision  remains  unreversed. 
(Mercein  v.  The  People,  25  Wend.  64.  And  see  The  People  v. 
Mercein,)  3  Hill)  399.)  If  the  decision  of  the  commissioner 
was  erroneous,  the  remedy  was  by  certiorari.  (Townsend  v. 
Morrell,  10  Wend.  577.)  If  the  debtor  can  make  a  second 
application  after  being  defeated  in  the  first,  there  can  be  no 
limit  to  the  applications,  and  the  creditor  may  better  abandon 
his  claim  at  once  than  think  of  opposing  a  discharge. 

It  is  asked,  how  can  the  debtor  get  out  of  jail  1  That  is  a 
question  which  we  are  not  now  called  upon  to  decide. 

Motion  denied. 


Ex  parte  NEWELL,  receiver,  &c. 

Where  a  junior  creditor  complied  with  the  requisites  for  redeeming  from  the 
purchaser  by  reimbursing  the  amount  of  the  bid,  &c.,  and,  on  the  same  day,  a 
senior  creditor  who  had  previously  become  assignee  of  the  original  certificate  of 
sale,  presented  to  the  sheriff  the  proper  evidence  of  that  fact  and  of  his  right  as 
creditor ;  held,  that  he  was  entitled  to  the  sheriff's  deed  without  paying  any 
money. 

The  affidavit  of  a  redeeming  creditor  as  to  the  amount  due  on  his  judgment, 
though  made  five  days  before  presenting  the  papers  to  the  sheriff,  is  sufficient. 

Where  such  creditor  is  an  assignee  of  the  judgment  in  virtue  of  which  he  seeks  to 
redeem,  though  the  statute  in  terms  requires  him  to  present  to  the  sheriff  a  copy 
of  his  assignment  &c.,  (2  R.  S.  373,  §  6,  subd.  2,)  it  is  sufficient  if  the  original 
be  presented.  Semble. 

An  acknowledgment  of  the  assignment,  certified  by  an  officer  authorized  to 
take  acknowledgments  of  deeds,  is  not  a  sufficient  verification  of  it  for  the  pur. 
pose  of  redeeming. 

Where  a  copy  of  an  assignment  was  verified  by  affidavit  as  follows  :  "  This  de. 
ponent  is  the  assignee  and  owner,  according  to  the  annexed  copy  of  the  transfer 
thereof  by  &c.,  [naming  the  assignor,]  in  good  faith,  of  the  said  judgment ;"  held, 
a  sufficient  verification,  though  unskilfully  drawn. 

REDEMPTION  of  lands  sold  on  execution.  On  the  23d  of  April, 
1841,  the  sheriff  of  Erie  sold  certain  lands  in  that  county  on 


ALBANY,  APRIL,  1848.  609 

Ex  parte  Newell. 

a  judgment  against  Isaac  S.  Smith  and  others,  docketed  May 
5,  1837  ;  and  William  D.  Taber  became  the  purchaser  at  the 
sum  of  $133,76.  On  the  8th  of  March,  1838,  Smith  mortgaged 
the  lands  to  the  City  Bank  of  Buffalo,  for  securing  the  pay- 
ment of  $15,120.  On  the  23d  of  July,  1842,  Newell,  as  re- 
ceiver of  the  City  Bank  of  Buffalo,  redeemed  in  virtue  of  the 
mortgage,  by  presenting  the  necessary  papers  and  paying  the 
proper  sum  to  the  sheriff.  On  the  same  day  (23d  of  July, 
1842)  Stephen  Smith,  by  his  agent,  delivered  to  the  sheriff  the 
certificate  of  sale  to  Taber,  with  an  assignment  thereof,  duly 
acknowledged,  from  Taber  to  said  Smith.  (Stat.  1835,  ch.  189.) 
Between  the  time  that  the  judgment  was  recovered  on  which 
the  land  was  sold,  and  the  giving  of  the  mortgage  to  the 
City  Bank,  five  several  judgments  were  recovered  either  against 
Isaac  S.  Smith  alone,  or  against  him  and  others,  all  of  which 
judgments  the  said  Stephen  Smith,  on  the  said  23d  of  July, 
claimed  to  own  as  assignee  thereof.  He  presented  to,  and  left 
with  the  sheriff,  a  copy  of  the  docket  of  each  of  the  judgments 
duly  certified,  and  his  own  affidavits  of  the  amount  due  on  each 
of  the  judgments.  As  to  four  of  the  judgments,  he  produced 
what  purported  to  be  the  original  assignments  to  him  from  the 
judgment  creditors,  severally  acknowledged  before  an  officer 
authorized  to  take  the  acknowledgment  of  deeds,  but  without 
any  other  verification.  In  some  of  the  affidavits  of  the  amount 
due,  he  stated  "  that  this  deponent  is  the  assignee  and  owner 
in  good  faith  of  said  judgment."  He  did  not  produce  a  copy 
of  any  of  those  assignments.  The  fifth  judgment  was  in  favor 
of  the  Onondaga  County  Bank,  and  as  to  that,  Smith  produced 
what  purported  to  be  copies  of  two  assignments  of  the  judgment 
from  the  bank  to  himself,  with  his  own  affidavit  of  the  amount 
due  on  the  judgment,  which  contained  the  following  words  : 
"  that  this  deponent  is  the  assignee  and  owner,  according  to 
the  annexed  copies  of  the  transfer  thereof  by  the  Onondaga 
County  Bank,  in  good  faith,  of  the  said  judgment,  and  that  the 
amount  of  the  sum  now  due  upon  said  judgment  for  principal 
and  interest  is  $17,150,88,  according  to  the  best  of  this  de- 
VOL.  IV.  77 


610  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Newell. 

ponent's  knowledge  and  belief."  Smith  paid  no  money  to  the 
sheriff — claiming  that  the  redemption  was  complete  without  it, 
as  he  was  the  owner  of  the  certificate  of  sale.  He  resided  at 
Syracuse,  and  his  affidavits  of  the  amounts  due  on  the  judg- 
ments were  made  five  days  before  his  agent  presented  the  pa- 
pers to  the  sheriff  at  Buffalo. 

T.  Burwell  fy  E.  F.  Smith  now  moved  for  a  mandamus  to 
the  sheriff,  requiring  him  to  execute  a  deed  to  Newell  as  re- 
ceiver. They  insisted  that  Stephen  Smith  had  not  redeemed, 
for  the  following  reasons,  viz  :  1st.  As  to  four  of  the  judg- 
ments he  had  not  produced  copies  of  the  assignments  ;  2d.  As 
to  the  fifth  judgment  there  was  no  sufficient  verification  of  the 
papers  presented  as  copies  of  the  assignments  ;  3d.  He  paid 
no  money  j  and  4th.  The  affidavits  of  the  amount  due  on  the 
judgments  respectively  were  made  five  days  before  he  claimed 
to  redeem. 

8.  H.  Hammona,  contra,  after  answering  these  objections,  in- 
sisted that  Newell  had  not  redeemed,  1st.  Because  he  had  not 
shown  that  he  was  duly  appointed  receiver,  as  the  bond  was 
given  to  the  register  in  chancery  when  it  should  have  been 
given  to  the  people  ;  and  2d.  Because  as  receiver  he  had  no 
power  to  redeem. 

By  the  Court,  BRONSON,  J.  In  the  view  which  we  have 
taken  of  the  case,  it  will  be  assumed  that  there  was  a  good  re- 
demption by  Newell  as  receiver,  but  without  deciding  the 
question. 

As  the  five  judgments  under  which  Stephen  Smith  claimed 
to  redeem  were  all  older  than  the  mortgage,  he  had  no  occa- 
sion for  redeeming  from  Newell.  He  had  purchased  and  taken 
an  assignment  of  the  original  certificate  of  sale  to  Taber,  and 
presented  the  proper  evidence  of  that  fact  to  the  sheriff  when 
he  attempted  to  redeem.  (Stat.  1835,  p.  210,  §  1,2.)  It  was 
not  necessary  for  him  to  pay  the  original  purchase  money  to 
the  sheriff,  for  the  reason  that,  as  owner  of  the  certificate,  he 


ALBANY,  APRIL,  1843. 


Ex  parte  Newell. 


stood  in  the  place  of  Taber,  and  was  himself  entitled  to  the 
money.  If  he  had  laid  it  down,  he  might  have  taken  it  up 
again  the  next  moment,  and  the  law  will  not  require  that  he 
should  go  through  with  so  idle  a  ceremony.  This  point  was 
involved  in  The  People  v.  Ransom,  (2  Hilly  51.)  That  case 
also  disposes  of  the  objection,  that  the  affidavits  stating  the 
amount  due  on  the  several  judgments  were  made  five  days  be- 
fore the  papers  were  presented  to  the  sheriff. 

As  all  of  the  judgments  were  older  than  the  mortgage,  it 
was  enough  to  defeat  the  redemption  by  Newell  if  the  papers 
presented  by  Smith  were  right  as  to  any  one  of  the  judgments. 
As  to  four  of  them,  he  presented  what  purported  to  be  original 
assignments  from  the  several  judgment  creditors,  when  the 
statute  only  provides  for  copies.  (2  R.  S.  373,  §60.)  Al- 
though an  original  instrument  is  generally  deemed  higher  evi- 
dence than  a  copy,  the  legislature  has  thought  proper  in  this 
instance  to  give  a  different  rifle  j  and,  within  the  principle  deci- 
ded by  the  court  of  errors  in  Waller  v.  Harris,  (20  Wend. 
655,)  there  is  some  difficulty  in  getting  over  the  objection  that 
copies  of  the  assignments  should  have  been  produced.  (a)  But 
the  doctrine  of  that  case  was  somewhat  shaken  by  the  subse- 
quent decision  of  this  court,  that  the  affidavit  of  the  amount  due 
may  be  made  before  the  time  has  arrived  when  the  creditor  has 
a  right  to  redeem.  (The  People  v.  Ransom,  2  Hill  ,51.)  My 
brethren  are  inclined  to  the  opinion  that  the  papers  were  suffi- 
cient, if  it  were  not  for  the  further  difficulty  that  there  was  no 
verification  of  the  papers  purporting  to  be  original  assign- 
ments. The  acknowledgments  of  those  papers  certified  by 
public  officers  proved  nothing,  for  the  reason  that  the  statute  re- 
quires a  different  mode  of  verification.  In  some  of  the  affida- 
vits of  the  amount  due,  Smith  deposed  that  he  was  "the  as- 
signee and  owner  in  good  faith  of  the  judgment  j"  but  he  said 
nothing  about  the  execution  or  authenticity  of  the  papers 
which  were  delivered  to  the  sheriff.  There  was  no  evidence 

(a)  Sec  Miller  v.  Woodworth,  (3  HOI,  529.) 


612  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Newell. 

upon  that  subject,  and  without  it  the  redemption  could  not  be 
made. 

The  remaining  judgment  was  recovered  by  the  Onondaga 
County  Bank,  and  as  to  that,  Smith  presented  what  purported 
to  be  copies  of  two  assignments  of  the  judgment  to  him  by  the 
bank  ;  and  the  only  question  is  on  the  verification.     The  stat- 
ute requires  the  redeeming  creditor  to  present  "  a  true  copy  of 
all  the  assignments  &c.,  verified  by  his  affidavit,  or  by  the  affi- 
davit of  some  witness  to  the  assignment. "     This  language  can- 
not be  satisfied  without  proof,  either  by  the  party  or  witness, 
that  the  paper  produced  is  a  copy  of  an  original  instrument 
which  was  duly  executed  ;  and  there  is  some  difficulty  in  say- 
ing that  this  affidavit  proves  so  much.     But  I  am  inclined  to 
think  it  is  sufficient.     The  words  are,  "  that  this  deponent  is 
the  assignee  and  owner  according  to  the  annexed  copies  of  the 
transfer  thereof  by  the  Onondaga  County  Bank,  in  good  faith, 
of  the  said  judgment. "     The  affidavit  was  not  very  skilfully 
drawn,  and  a  slight  transposition  of  the  different  members  of 
the  sentence,  without  the  addition  or  omission  of  a  single  word, 
will  make  it  express  more  clearly  what  I  think  the  party  in- 
tended to  affirm.     It  will  then  read,  "  that  this  deponent  is  the 
assignee  and  owner,  in  good  faith,  of  the  said  judgment,  accord- 
ing to  the  annexed  copies  of  the  transfer  thereof  by  the  On- 
ondaga County  Bank. "     The  party  swears  positively  that  he  is 
"  the  assignee  and  owner  "  of  the  judgment,  and  if  it  had  not 
been  duly  assigned,  he  may  be  convicted  of  perjury.    And  fur- 
ther, that  he  is  the  assignee  and  owner  of  the  judgment,  "  accord- 
ing to  the  annexed  copies  of  the  transfer  thereof  by  the  Onon- 
daga County  Bank. "     This  cannot  well  mean  less,  than  that 
the  papers  annexed  are  "  copies  of  the  transfer  "  by  which  he 
became  "  the  assignee   and   owner "  of  the  judgment.     Al- 
though the  question  is  not  entirely  free  from   difficulty,   we 
think  the  affidavit  sufficient ;  and  as  there  was  a  good  redemp- 
tion under  this  judgment,  Stephen  Smith,  and  not  the  relator, 
is  entitled  to  the  sheriff's  deed. 

As  the  case  is  one  of  some  importance,  and  the  relator  may 


ALBANY,  APRIL,  1843.  613 

Ex  partc  Becker. 

wish  to  review  our  decision,  he  may,  if  he  shall  so  elect  within 
thirty  days,  have  an  alternative  mandamus  for  the  purpose  of 
putting  the  matter  on  record.  Otherwise,  the  motion  is  denied. 

Ordered  accordingly. 


Ex  partc  BECKER. 

Where,  for  the  purpoec  of  redeeming  land  sold  on  execution,  a  judgment  creditor 
paid  to  the  sheriff  certain  foreign  coin,  which  was  received  by  him  at  its  current 
value  without  objection,  but  which  turned  out  to  be  legally  worth  a  few  cent* 
less ;  yet  held,  a  valid  payment 

So,  where  the  payment  was  made  partly  in  current  foreign  coin  which  was  not  a 
legal  tender. 

Judgments  and  decrees  entered  after  the  act  of  1840  (Sets.  L.  40,  p.  327)  took 
effect,  though  recovered  in  suits  commenced  before  that  time,  arc  net  liens  on 
real  ectate  unless  docketed  in  the  counties  where  tb.3  lands  are  situated. 

That  part  of  the  act  relating  to  the  fees  of  counsellors,  attorneys  &c.,  does  not  ap- 
ply to  suite  commenced  before  the  act  went  into  effect  Per  BRO.NSON  ,  J. 

REDEMPTION  of  lands  sold  on  execution.  On  the  1.1th  of 
December,  1841,  the  sheriff  of  Erie  sold  certain  lands  in 
Buffalo  on  executions  against  Peyton  Harris ;  Augustus  C. 
Moore  becoming  the  purchaser  at  the  sum  of  $147,55.  On 
the  7th  of  June,  1841,  another  judgment  against  Harris  waa 
recovered  in  this  court  by  George  L.  Record  for  8111,37, 
which  was  on  that  day  docketed  in  the  clerk's  office  of  this 
court  at  Geneva,  but  was  never  docketed  in  the  county  of  Erie. 
The  suit  in  which  this  judgment  was  recovered  was  commenc- 
ed in  the  year  1837.  On  the  1 1th  of  March,  1843,  Becker,  the 
relator,  having  previously  become  the  owner  of  Record's  judg- 
ment by  assignment,  presented  the  necessary  papers  and  made 
the  proper  payment  to  the  sheriff  for  the  purpose  of  redeeming 
from  Moore,  the  purchaser.  On  the  same  day  Milo  W.  Hill, 
who  had  a  judgment  against  Harris  in  the  Erie  C.  P.,  docketed 


614        CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Becker. 

on  the  24th  of  February,  1843,  presented  the  necessary  papers, 
and  paid  to  the  sheriff  the  proper  sum  ($160,46)  for  the  pur- 
pose of  redeeming  from  Moore,  the  original  purchaser ;  but  he 
paid  nothing  for,  nor  did  he  attempt  to  redeem  from  the  rela- 
tor — insisting  that  the  judgment  under  which  the  latter  redeem- 
ed was  not  a  lien  on  the  lands,  because  it  had  not  been  dock- 
eted in  the  clerk's  office  of  Erie  county. 

Hill,  on  redeeming,  made  the  necessary  payment  in  specie, 
and  the  sheriff  received  the  money  by  count,  without  weighing. 
Among  other  coins,  there  were  sixteen  English  sovereigns  paid 
and  received  at  $4,84  each,  amounting  to  $77,44  ;  three 
French  five-franc  pieces,  at  7s.  6d.,  $2,81 ;  eleven  Spanish 
quarter  dollars,  at  25  cents  each  ;  two  Mexican  quarter  dollars 
at  the  same  rate  ;  and  four  Spanish  six-penny  pieces  at  6| 
cents  each.  Twelve  days  afterwards  the  relator  caused  the 
sovereigns  to  be  weighed,  when,  as  the  witness  testified,  they 
were  found  to  fall  short  in  value  of  the  gross  sum  at  which 
they  were  received,  nearly  ten  cents,  taking  the  standard  estab- 
lished by  the  act  of  congress  of  March  3,  1843.  A  few  days 
afterwards,  Hill  caused  the  sovereigns  to  be  weighed  by  other 
scales,  and  the  witness  testified  that  they  exceeded  in  value  the 
gross  sum  at  which  they  were  received,  by  one  cent.  The  re- 
lator now  insisted  that  Hill  did  not  pay  enough,  because  the 
sovereigns  were  received  at  two  great  a  sum  by  ten  cents  ;  the 
five-franc  pieces  at  too  much  by  three  cents  j  and  that  the 
quarter  dollars  and  six-penny  pieces  were  not  legal  coins  by 
virtue  of  any  act  of  congress. 

On  the  25th  of  March,  1843,  the  relator  purchased  and  took 
an  assignment  of  the  sheriff's  certificate  of  sale,  duly  acknowl- 
edged, and  presented  the  same  to  the  sheriff,  and  demanded  a 
deed  both  on  account  of  his  redemption,  and  as  the  owner  of 
the  certificate,  which  the  sheriff  declined  executing  without  the 
order  of  this  court. 

T.  Burwellj  now  moved  for  a  mandamus  to  the  sheriff,  re- 
quiring him  to  execute  a  deed  to  the  relator. 


ALBANY,  APRIL,  1843.  615 

Ez  parte  Booker. 
M.  T.  Reynolds  j  on  behalf  of  Hill,  opposed  the  motion. 

By  the  Court,  BRONSON,  J.  The  relator,  either  as  a  re- 
deeming creditor,  or  as  the  assignee  of  the  certificate  of  sale, 
(Stat.  1835,  p.  210,  ^  1,  2,)  is  clearly  entitled  to  the  deed, 
unless  there  was  a  good  redemption  by  Hill.  And  whether 
Hill  redeemed  or  not  depends  upon  two  questions  :  first,  wheth- 
er he  paid  money  enough  to  redeem  from  the  original  pur- 
chaser ;  and  second,  whether  the  judgment  under  which  the 
relator  claims  was  a  lien  on  the  lands ;  for  if  it  was  a  lien, 
Hill  should  have  paid  the  amount  of  that  judgment,  which  was 
older  than  his  own,  as  well  as  the  original  purchase  money. 

1.  Did  Hill  make  a  sufficient  payment  to  effect  a  redemption 
as  against  the  original  purchaser  ?  As  to  the  sovereigns,  the 
evidence  is  balanced,  and  it  is  impossible  for  us  to  say  that  the 
sheriff  received  them  at  more  than  their  legal  value.  But  if 
the  relator's  proof  was  undisputed,  and  the  sovereigns  were  in 
truth  paid  at  a  few  cents  beyond  their  legal  value,  yet  as  they 
were  accepted  by  the  sheriff  at  their  current  value,  without  ob- 
jection, it  was  a  good  payment.  The  five-franc  pieces  were 
paid  and  received  by  tale  at  their  current  value,  amounting  in 
the  gross  to  $2,81,  when  their  legal  value  was  two  cents  less 
than  that  sum.  This  payment  stands  on  nearly  the  same  foot- 
ing as  that  in  relation  to  the  sovereigns,  and  the  maxim  de 
minimis  non  curat  lex  may  be  applied  to  both. 

As  to  the  other  foreign  coins,  being  Spanish  and  Mexican 
quarters  of  a  dollar  and  six-penny  pieces,  it  was  conceded  on 
the  argument  that  they  were  not  a  legal  tender,  and  without 
stopping  to  examine  the  acts  of  congress,  I  shall  assume  the 
fact  to  be  correctly  stated.  Although  not  a  legal  tender,  they 
were  current  coins,  such  as  are  usually  received  by  tale,  and 
were  accepted  by  the  sheriff,  without  objection,  at  their  cur- 
rent value  in  the  community.  This  was  a  good  payment. 
The  case  does  not  fall  within  the  principle  of  Dickinson  v.  Gil- 
liland,  (1  Cotcen,  481,)  where  the  redeeming  creditor,  through 
a  mistake  of  the  law,  paid  only  seven  per  cent,  interest,  when 


616  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Becker. 

he  should  have  paid  ten.  Nor  is  it  like  the  case  of  The  Peru 
Iron  Company,  (7  Cowen,  540,)  where,  in  consequence  of 
erroneous  information,  the  creditor  did  not  pay  half  so  much 
money  as  should  have  been  paid.  It  is  like  the  case  of  a  pay- 
ment in  current  bank  bills,  which,  though  not  a  legal  tender, 
if  accepted  by  the  sheriff,  without  objection,  would  be  a  good 
payment  for  the  purpose  of  redeeming. 

2.  Hill  did  all  that  was  necessary  for  the  purpose  of  redeem- 
ing from  the  original  purchaser,  and  the  only  remaining  ques- 
tion is,  whether  he  should  have  also  paid  the  Record  judgment 
which  was  older  than  his,  and  under  which  the  relator  had  re- 
deemed as  assignee.  That  depends  on  the  question  whether 
this  judgment  was  a  lien  on  the  debtor's  lands  in  the  coun- 
ty of  Erie,  where  it  had  not  been  docketed.  The  suit  was 
commenced  before  and  the  judgment  was  recovered  after 
the  reform  act  of  1840  (Stat.  1840,  p.  327)  took  effect  as 
a  law. 

The  38th  section  of  the  act  of  1840  is  in  the  following 
words  :  "  This  act  shall  not  affect  any  suit  or  proceeding,  nor 
the  fees  or  costs  therein,  which  shall  be  commenced  before  the 
same  shall  take  effect."  It  is  settled  that  this  governs  the 
form  and  time  of  issuing  writs  of  fieri  facias,  as  provided  for 
by  the  24th  section.  (The  JV.  F.  and  Shawangunk  Mining 
Company,  22  Wend.  636 ;  Commercial  Bank  of  Oswego  v. 
IveSj  2  Hill,  355  ;  Stone  v.  Green,  3  id.  469.)  So,  too,  it 
has  often  been  held  that  the  first  thirteen  sections,  which  relate 
to  costs,  do  not  affect  the  costs  in  suits  commenced  before  the 
act  took  effect,  though  I  do  not  recollect  that  any  case  upon 
that  point  has  been  reported,  (a)  There  are  other  sections  relat- 
ing to  costs,  and  various  provisions  on  other  subjects,  which 
are  undoubtedly  governed  by  the  38th  section. 

But  the  several  sections  relating  to  the  docketing  and  lien 


(a)  See  Larmon  v.  Aikcn,  (ante,  p.  591,)  as  to  costs  upon  writs  of  error  brought 
since  the  statute,  for  the  purpose  of  reversing  judgments  rendered  before. 


ALBANY,  APRIL,  1843.  617 

Ex  partc  Becker. 

of  judgments  and  decrees  are  peculiar  in  their  phraseology, 
and,  by  express  words,  apply  to  all  judgments  which  are  recov- 
ered or  perfected  after  the  act  took  effect,  without  any  reference 
to  the  time  when  the  suit  was  commenced.  "  No  judgment  or 
decree  which  shall  be  entered  after  this  act  takes  effect^  shall  be 
a  lien  upon  real  estate,  unless  the  same  shall  be  docketed5'  in 
the  clerk's  office  of  the  county  "  where  the  lands  are  situate." 
(^  25.)  "After  this  act  takes  effect,  when  a  judgment  shall 
be  perfected  in  the  supreme  court,"  the  clerk  shall  furnish 
transcripts  for  the  purpose  of  having  the  same  docketed  by  the 
county  clerk.  (§  26.)  Sections  27  and  28  carry  out  these 
provisions  in  relation  to  decrees  in  chancery,  the  judgments 
of  the  superior  court  of  the  city  of  New-York,  and  the  several 
mayors'  courts^  The  29th  section  provides,  that  "the  judg- 
ments of  the  superior  court  of  the  city  of  New- York,  and  of 
any  court  of  common  pleas,  recovered  after  this  act  takes  ef- 
fect" may  be  docketed  in  other  counties.  And  by  the  31st 
section,  "  the  lien  of  every  judgment  or  decree  to  be  docketed 
after  this  act  takes  effect^  shall  cease  to  have  preference  &c.  at 
the  expiration  of  five  years  from  the  day  when  the  judgment 
was  perfected,  or  the  decree  entered."  Nothing  can  be  more 
clear  than  that  the  legislature  intended  this  statute,  when  it 
came  into  operation,  should  apply  to  and  control  the  docketing 
and  lien  of  all  subsequent  judgments  and  decrees,  without  any 
reference  to  the  time  when  the  suit  was  commenced.  It  is 
true  that  the  38th  section  is  broad  enough  in  its  terms  to  cover 
every  provision  in  the  act  j  but  it  must  be  read  with  such  a 
qualification  as  will  not  bring  it  into  direct  conflict  with  other 
portions  of  the  same  statute.  Although  the  language  extends 
to  every  suit  and  proceeding  previously  commenced,  an  excep- 
tion must  be  understood  and  implied  as  to  those  sections  in 
which  the  legislature  had  specially  provided  for  the  applica- 
tion of  a  different  rule.  This  is  the  only  way  in  which  the 
different  parts  of  the  act  can  have  effect,  without  being  brought 
into  direct  and  necessary  conflict  with  each  other. 

So  far  as  arguments  ab  inconvenienti  may  be  regarded,  they 

VOL.  IV.  78 


618  CASES  IN  THE  SUPREME  COURT. 

Ex  parte  Becker. 

tend  strongly  in  favor  of  this  construction.  The  primary  ob- 
ject of  the  sections  relating  to  the  docketing  of  judgments  and 
decrees  was,  to  make  the  clerk's  office  of  the  county  the  only 
place  where  a  search  need  be  made  for  the  purpose  of  ascer- 
taining what  liens  and  charges  existed  upon  any  lands  in  that 
county.  It  is  a  most  important  provision  for  the  saving  of 
time  and  expense ,  and  is  highly  beneficial  to  the  whole  com- 
munity. But  if  we  adopt  the  relator's  construction  we  shall 
defeat  one  of  the  great  ends  for  which  the  statute  was  passed. 
It  may  be  many  years  before  all  the  suits  at  law  and  in  equity 
which  were  commenced  prior  to  June  1st,  1840,  will  be  final- 
ly determined  and  the  judgments  and  decrees  therein  perfect- 
ed j  and  no  one  can  safely  purchase  or  take  a  mortgage  upon 
lands  until  he  has  searched  all  the  clerk's  offices  of  this  court, 
in  the  same  manner  as  would  have  been  necessary  if  the  ac«. 
of  1840  had  not  been  passed.  I  am  unwilling  to  adopt  a  con- 
struction which  will  conflict  thus  directly  with  the  policy  of 
the  law. 

We  are  of  opinion  that  the  relator's  judgment  was  not  a.  lien 
on  the  land,  and  his  motion  must  consequently  be  denied.  But 
as  the  question  is  an  important  one,  he  may,  if  he  shall  so 
elect  within  thirty  days,  have  an  alternative  mandamus  for  the 
purpose  of  putting  the  question  on  record  with  the  view  to  a 
writ  of  error. 

Ordered  accordingly. 


CASES 

ARGUED  AND  DETERMINED 

Of  TBS 

S  t?  3P  I£  IE  EC  IE     @©tJ3 

or  THK 

STATE    OF    NEW-YORK, 

IN  MAT  TERM,  1813. 


TAYLOR  and  others  vs.  RANNEY  and  GROVE,  impleaded  &c. 

A  mere  levy  upon  real  estate  in  virtue  of  a  fi.  fa.,  never  amounts  to  a  satisfac- 
tion. Per  BRO.SSOX,  J. 

Where,  in  scire  facial  to  revive  a  judgment,  the  tcrre-tcnant  pleaded  that  the 
plaintiff  issued  &fi.  fa.  upon  the  judgment,  and  that  in  virtue  thereof  the  sheriff 
caused  to  be  levied  "  the  damages  &c.  on  the  goods  and  chattels,  lands  and  ten- 
ement*" of  the  defendant ;  held,  not  sufficient  to  show  the  judgment  satisfied, 
and  that  the  plea  was  therefore  bad. 

Otherwise,  had  the  allegation  in  the  plea  been  that  the  damages  &c.  were  levied 
of  the  goods  and  chattels,  lands  and  tenements  &c.  Per  BROXSO.V,  J. 

It  is  a  general  principle  that  transactions  between  A.  and  B.,  whether  in  or  out 
of  court,  shall  not  have  such  an  effect  as  will  take  away  the  previously  acquired 
rights  of  third  persons.  Per  BRONSOX,  J. 

A  fi.  fa.  having  been  returned  satisfied,  an  entry  was  made  in  the  docket 
of  the  judgment  pursuant  to  2  R.  S.  362,  $  26,  and  the  return  was  afterwards 
vacated  by  order  of  the  court :  Held,  that  lands  sold  by  the  execution  debtor  to 
a  bona  fide  purchaser,  after  the  entry  in  the  docket  and  before  the  vacatur, 
could  not  be  affected  by  the  judgment 

As  against  the  judgment  debtor,  however,  his  heirs  &.C.,  such  order  will  operate 
restrospectively,  and  carry  back  the  lien  of  the  judgment  to  the  date  of  the  ori- 
ginal docket  Per  BRONSON,  J. 

Where,  in  scire  facias  to  revive  a  judgment,  the  tcrrc-tcnant  pleaded  the  return  of 
an  execution  satisfied,  an  entry  upon  the  docket  pursuant  to  the  above  statute, 

619 


620       CASES  IN  THE  SUPREME  COURT. 

Taylor  v.  Ranney. 


and  that  after  such  entry  he  purchased  the  lands  in  question  in  good  faith, 
for  a  valuable  consideration ;  held,  that  the  plea  was  bad,  inasmuch  as  it  did  not 
set  forth  a  purchase  from  or  under  the  judgment  debtor. 

SCIRE  FACIAS  to  revive  a  judgment  for  $873,58,  which  the 
plaintiffs  recovered  in  this  court  against  John  Cronkhite  and 
Henry  Springsteen  on  the  2d  day  of  May,  1835.  Ranney  and 
Grove  were  summoned  as  terre-tenants  of  certain  lands,  and 
they  pleaded,  sccondj  that  the  plaintiffs  ought  not  to  have  exe- 
cution &c.,  because  they  say,  that,  on  the  21st  of  October,  1835, 
the  plaintiffs  issued  a  fieri  facias  on  the  judgment  to  the  sher- 
iff of  Niagara,  by  virtue  of  which  writ  the  sheriff  on  the  same 
day,  the  damages,  costs  and  charges  aforesaid  on  the  goods  and 
chattels,  lands  and  tenements  of  Cronkhite  and  Springsteen, 
caused  to  be  levied  j  and  this  they  are  ready  to  verify  &c. 
The  plaintiffs  replied,  and  the  terre-tenants  demurred  to  the 
replication. 

Plea  fourth,  a  fieri  facias  issued  as  in  the  2d  plea,  and  that 
afterwards,  to  wit,  on  the  18th  of  April,  18363  the  sheriff  return- 
ed the  said  writ  offi.fa.,  endorsed  by  the  said  sheriff  satisfied, 
to  the  clerk  of  this  court  at  Geneva,  where  the  same  was  duly 
filed,  and  the  said  clerk  entered  in  the  docket  of  the  said  judg- 
ment the  satisfaction  of  the  same  j  and  afterwards  and  before 
the  issuing  of  the  scire  facias,  to  wit,  on  the  first  of  May,  1838, 
the  said  Wells,  Ranney  and  Henry  Grove  made  a  bonafide  pur- 
chase, and  became  possessed  in  fee  simple,  and  for  a  valuable 
consideration  by  them  in  good  faith  paid  therefor,  of  the  lands 
and  tenements  in  the  scire  facias  mentioned  whereof  they  were 
returned  tenants.  Verification. 

Replication  to  said  fourth  plea,  that  after  the  making 
of  the  said  return  to  the  fi.  fa.,  to  wit,  on  the  8th  of  Au- 
gust, 1838,  the  said  supreme  court,  by  a  certain  order  made 
in  the  original  action,  ordered  and  granted  to  the  sheriff  leave 
to  strike  out  his  return  of  satisfied  endorsed  on  the  fi.  fa.  then 
on  file,  or  to  alter  or  amend  his  said  return,  or  to  file  a  new  re- 
turn to  said  writ ;  and  under  and  in  pursuance  of  the  order  and 
leave  so  granted,  the  sheriff  afterwards,  to  wit,  on  the  12th  of 
October  1838,  did  strike  out  his  return  of  satisfied  on  ihefi.fa., 


NEW-YORK,  MAY,  1843. 


Taylor  t>.  Ranney. 


and  did  make  return  thereto  that  the  said  writof/./a.  was  re- 
turned by  him  unsatisfied  by  the  order  and  direction  of  the 
plaintiffs.  Verification.  Demurrer  and  joinder. 

J.  Edwards,  for  the  terre-tenants. 
E.  F.  Smith,  for  the  plaintiffs. 

By  the  Court,  BRONSON,  J.  The  second  plea  does  not  show 
a  satisfaction  of  the  judgment.  The  allegation  is,  that  by  vir- 
tue of  the  Jieri  facias  the  damages  were  levied  on  the  goods 
and  chattels,  land  and  tenements  of  the  judgment  debtors. 
It  should  have  been,  that  the  damages  were  levied  of  the  goods 
&c.  A  mere  levy  upon  lands  never  amounts  to  satisfaction. 
(Shepard  v.  Rowe,  14  Wend.'  260.)  Nor  does  a  levy  upon 
goods,  even  where  they  are  of  sufficient  value  to  pay  the  debt, 
necessarily  amount  to  a  satisfaction.  (Green  v.  Burke,  23 
Wend.  490.)  Here  the  levy  was  upon  lands  as  well  as  goods, 
and  there  is  no  averment  that  either  or  both  of  them  were  of 
sufficient  value  to  pay  the  debt,  or  that  any  sale  or  satisfaction 
has  followed.  The  plea  is  clearly  bad. 

The  fourth  plea  and  the  replication  to  it  present  questions  of 
more  difficulty.  A  new  provision  was  made  in  1830,  that 
"when  an  execution  issued  upon  any  judgment  shall  be  re- 
turned satisfied  in  whole  or  in  part,  such  judgment  shall  be 
deemed  satisfied  to  the  extent  of  the  amount  so  returned  as 
having  been  collected  on  such  execution,  unless  such  return  be 
vacated  by  the  court.  And  upon  any  execution  being  so  re- 
turned, the  clerk  of  the  court  shall  enter  in  the  docket  of  such 
judgment,  the  fact  that  the  amount  stated  in  such  return  to 
have  been  levied,  has  been  collected.  "  (2  R.  S.  362,  §  26.) 
In  April,  1836,  the  sheriff  returned  the  execution  satisfied,  and 
the  clerk  entered  the  satisfaction  in  the  docket  of  the  judg- 
ment. Two  years  afterwards,  Ranney  &  Grove  made  a  bona 
fide  purchase  of  the  lands  of  which  they  are  returned  tenants. 
Three  months  after  that,  an  order  was  made  by  this  court  al- 


622  CASES  IN  THE  SUPREME  COURT. 

Taylor  v.  Ranney. 

lowing  the  sheriff  to  strike  out  his  return  upon  the  execution 
and  make  a  new  one.  The  sheriff  struck  out  the  original  re- 
turn and  made  a  new  one,  that  the  execution  was  returned  un- 
satisfied by  direction  of  the  plaintiffs.  Upon  this  state  of 
facts,  and  assuming  that  the  plea  is  well  pleaded,  we  are  of 
opinion  that  the  plaintiffs  cannot  reach  the  lands  in  the  hands  of 
these  terre-tenants.  They  purchased  at  a  time  when  the  judg- 
ment had  ceased  to  be  a  lien,  and  it  would  be  a  great  hardship 
upon  them  to  give  such  a  retroactive  effect  to  the  amendment 
which  the  sheriff  was  afterwards  allowed  to  make  in  his  return 
as  would  overreach  and  defeat  their  title.  If  it  was  the  fault 
of  the  plaintiffs  that  the  original  return  was  wrong,  they  ought 
to  bear  the  burden  instead  of  casting  it  off  upon  bond  fide  pur- 
chasers. If  the  sheriff  made  a  false  return,  the  plaintiffs  may 
have  an  action  against  him ;  and  it  is  much  more  reasonable  to 
confine  them  to  that  remedy,  than  it  would  be  to  allow  them  to 
visit  the  fault  of  the  officer  upon  innocent  third  persons.  In 
Lownds  v.  Reinsert)  (7  Wend.  35,)  the  sheriff  was  sued  for  the 
escape  of  a  prisoner  from  the  jail  limits,  and  he  produced  a 
forged  satisfaction  piece  which  had  been  filed  with  the  clerk, 
and  upon  the  authority  of  which  the  clerk  had  entered  satisfac- 
tion in  the  docket  of  the  judgment.  This  was  held  to  be  no 
justification  of  the  sheriff.  But  how  it  would  have  been  had  the 
sheriff  acted  upon  the  supposed  satisfaction,  as  by  discharging 
the  debtor  from  actual  custody  or  delivering  up  the  limit  bond, 
was  not  decided.  Here  the  terre-tenants  have  acted  and  part- 
ed with  their  money  upon  the  faith  of  the  satisfaction.  And 
besides,  the  satisfaction  was  not  based  upon  a  forgery,  but 
upon  the  official  act  of  a  high  public  officer. 

It  is  true  that  the  statute,  in  providing  that  the  court  may 
vacate  the  sheriff's  return,  has  not  saved  the  rights  of  pur- 
chasers who  may  have  acted  upon  the  faith  of  the  return.  But  I 
think  the  principle  established  in  Jackson  v.  Benedict,  (13 
John.  533,)  covers  the  case.  The  statute  for  the  relief  of  im- 
prisoned debtors  gave  a  new  execution  against  the  goods  and 
lands  of  the  discharged  debtor,  in  the  same  manner  and  form 


NEW-YORK,  MAY,  1843.  623 

Taylor  r.  Ranney. 

as  though  he  had  never  been  taken  in  execution,  and  did  not 
save  the  rights  which  any  third  person  might  have  acquired 
prior  to  the  discharge.  (1  R.  L.  349,  §  3,  7.)  And  yet,  in  the 
case  cited,  such  rights  were  protected.  It  was  an  action  of 
ejectmeni,  and  both  parties  claimed  the  land  under  sales  upon 
judgments  against  the  same  debtor.  The  plaintiff's  judgment 
was  the  oldest,  and  on  that  the  debtor  was  taken  in  execution. 
Pending  his  imprisonment,  another  creditor  obtained  a  judg- 
ment and  sold  the  land  to  the  defendant.  The  debtor  was  then 
discharged,  and  the  plaintiff  thereupon  issu'ed  execution  and 
sold  the  same  land.  Although  the  plaintiff  had  the  oldest  lien, 
the  defendant's  title  prevailed.  The  court  said,  "  taking  the 
body  in  execution  is  a  discharge  of  the  judgment,  except 
where  otherwise  provided  by  statute,  and  the  imprisonment  of 
the  person  must  be  a  suspension  of  the  lien.  The  defendant 
in  such  a  case  would  have  a  right  to  sell  his  property,  either 
real  or  personal ;  and  the  execution  allowed  by  the  statute  to 
be  taken  out  after  the  discharge,  against  his  property,  cannot 
claim  priority  to  a  lien  created  or  right  acquired  by  others 
during  the  imprisonment  of  the  defendant.  "  That  is  a  stronger 
case  than  the  one  now  before  us.  There,  the  second  creditor 
knew  that  the  first  had  nothing  more  than  a  nominal  satisfac- 
tion by  the  imprisonment  of  the  debtor,  and  he  knew  also  that 
the  first  creditor  would  be  entitled  to  a  new  execution  in  case 
the  debtor  should  obtain  a  discharge.  Here,  the  terre-tenants 
had  record  evidence  that  the  plaintiffs  had  obtained  actual  sat- 
isfaction of  their  judgment,  and  they  had  no  reason  to  suppose 
that  there  had  been  any  mistake  on  the  part  of  the  plaintiffs 
or  wrong  on  the  part  of  the  sheriff,  which  would  authorize  the 
vacating  of  his  return. 

It  is  a  general  principle,  that  transactions  between  A.  and 
B.  whether  in  or  out  of  court,  shall  not  have  such  an  effect  as 
will  take  away  the  previously  acquired  rights  of  third  persons  ; 
and  this  statute  should  be  so  construed  as  not  to  revive  the  lien 
of  the  judgment,  as  against  a  bona  fide  purchaser.  As  against 


624  CASES  IN  THE  SUPREME  COURT. 

Taylor  v.  Ramiey. 

the  debtor,  his  heirs  and  devisees,  and  others  who  will  sustain 
no  legal  injury,  the  lien  may  be  revived  and  carried  back  to 
the  date  of  the  original  docket. 

But  although  the  principle  of  the  plea  is  well  enough,  it 
does  not  state  all  the  necessary  facts  to  make  out  a  good  an- 
swer. The  terre-tenants  say  they  are  bona  fide  purchasers  for  a 
valuable  consideration ;  but  they  do  not  state  from  whom  they 
purchased.  It  may  be  that  the  purchase  was  made  from  one 
who  was  an  utter  stranger  to  the  title  of  Cronkhite  and  Spring- 
steen ;  and  then  the  plea  is  bad,  because  it  does  not  show  that 
the  title  under  which  the  tenants  hold  is  paramount  to  the  title 
of  the  judgment  debtors.  If  the  tenants  were  aiming  at  such 
a  defence,  they  should,  perhaps,  have  said  directly  that  the 
judgment  debtors  were  not  seised  of  the  lands  at  the  time  the 
judgment  was  docketed,  or  at  any  time  afterwards.  (See  Com. 
Dig.  Pleader,  (3  L.  14).)  But  I  presume  they  meant  to  admit 
that  the  judgment  was  once  a  lien  on  the  land,  and  then  to  set 
up  a  purchase  from  the  judgment  debtors,  or  from  some  per- 
son who  had  acquired  their  title,  intermediate  the  satisfaction 
of  the  judgment  and  the  amendment  of  the  sheriff's  return. 
The  fact  of  a  purchase  from  or  under  the  judgment  debtors  is 
not  stated  in  the  plea  \  and  without  that  fact,  or  a  denial  of 
the  seisin  of  the  judgment  debtors,  the  plea  cannot  be  supported. 

Judgment  for  the  plaintiffs. 


NEW-YORK,  MAY,  1843.  625 

Gary  t.  Groman. 


GARY  vs.  GBUMAK. 

The  proper  measure  of  damages  for  the  breach  of  a  warranty  of  wnmdncsi  on  the 
ealc  of  a  horse,  is  the  difference  between  the  value  of  the  hone  at  the  time  of  the 
sale,  considering  him  as  sound,  and  his  value  w:th  the  defect  complained  of. 

Accordingly,  where  the  court  below  rejected  evidence  of  what  would  have  been  th« 
real  value  of  the  horse  at  the  time  of  sole  if  sound,  and  instructed  the  jury  that 
the  proper  measure  of  damages  was  the  difference  between  the  price  paid  fa 
him,  and  his  value  with  the  defect ;  held  erroneous,  and  the  judgment  was  there, 
fore  reversed. 

The  price  paid,  however,  is,  in  such  case,  strong  evidence  of  what  the  hone 
would  have  been  worth  if  sound,  and  should  always  control  unless  it  be  clear  that 
the  actual  value  was  cither  greater  or  less.  Per  COWCN,  J. 

The  case  of  Conceit  v.  Coare,  (1  Taunt.  566,)  cited  and  explained. 

If  a  horse  be  sold  with  warranty  of  soundness,  though  he  turn  out  to  have  been 
unsound  at  the  time,  the  vendee  has  no  right  to  return  him  and  recover  back  the 
price  paid,  unless  there  bo  either  an  agreement  to  that  effect  or  fraud  on  the 
part  of  the  vendor.  Per  COWEN.  J 

ON  error  from  the  Oneida  C.  P.  Gruman  sued  Gary  in  a 
justice's  court  for  the  breach  of  a  warranty  of  soundness  on 
the  sale  of  a  horse ;  and,  after  a  trial  before  the  justice,  he  ren- 
dered judgment  in  favor  of  Gruman,  from  which  Gary  appealed 
to  the  common  pleas.  The  price  paid  for  the  horse  was  $90, 
and  the  breach  complained  of  was  a  disease  in  the  horse's  eyes. 
On  the  trial  in  the  common  pleas,  after  Gruman,  the  plaintiff, 
had  given  evidence  tending  to  prove  the  warranty  and  the 
disease,  the  defendant,  in  the  course  of  cross-examining  one  of 
the  plaintiff's  witnesses,  enquired  what  the  horse  would  have  been 
worth  at  the  time  of  the  sale,  if  he  had  been  sound  j  declaring 
that  one  object  of  the  question  was,  to  show  the  amount  of  the 
plaintiff's  damages,  if  entitled  to  any,  under  the  following  rule, 
which  he  contended  to  be  the  true  one,  viz.  "  that  the  proper 
measure  of  damages  was  the  difference  between  the  real  value 
of  the  horse  if  sound,  and  his  real  value  with  the  defect  com- 
plained of."  The  court,  though  they  received  the  answer  for 
another  purpose,  overruled  it  for  the  purpose  proposed  as  above, 
holding  the  true  measure  of  damages  to  be,  the  difference  be- 

VOL.  IV.  79 


626  CASES  IN  THE  SUPREME  COURT. 

Gary  ».  Gruman. 

tween  the  pnce  paid,  and  the  value  with  the  defects.  The 
trial  proceeded  accordingly  ;  and  the  jury  were  charged  to 
govern  themselves  by  this  rule. 

The  defendant  below  took  exceptions  to  the  decision  and 
charge  ;  and,  the  verdict  and  judgment  being  for  the  plaintiff 
below,  the  defendant  brought  error  to  this  court  on  the  above 
and  other  grounds. 

J.  W.  Jenkins,  for  the  plaintiff  in  error. 
0.  S.  Williams,  for  the  defendant  in  error. 

By  the  Court,  COWEN,  J.  It  is  unnecessary  to  enquire 
whether  various  exceptions  taken  in  the  case,  mainly  of  a 
formal  character,  are  well  founded  ;  for  we  think  the  court  be- 
low erred  in  laying  down  the  rule  of  damages.  A  warranty 
on  the  sale  of  a  chattel  is,  in  legal  effect,  a  promise  that  the 
subject  of  sale  corresponds  with  the  warranty,  in  title,  sound- 
ness or  other  quality  to  which  it  relates ;  and  is  always  so 
stated  in  the  declaration  when  this  is  technically  framed.  It 
naturally  follows  that  if  the  subject  prove  defective  within  the 
meaning  of  the  warranty,  the  stipulation  can  be  satisfied  in  no 
other  way  than  by  making  it  good.  That  cannot  be  done  except 
by  paying  to  the  vendee  such  sum  as,  together  with  the  cash 
value  of  the  defective  article,  shall  amount  to  what  it  would 
have  been  worth  if  the  defect  had  not  existed.  There  is  no 
right  in  the  vendee  to  return  the  article  and  recover  the  price 
paid,  unless  there  be  fraud,  or  an  express  agreement  for  a  re- 
turn. (Voorhees  v.  Earl,  2  Hill,  288.)  Nor  does  it  add  to 
or  detract  any  from  the  force  or  compass  of  the  stipulation  that 
the  vendee  may  have  paid  a  greater  or  less  price.  The  very 
highest  or  the  very  lowest  and  most  trifling  consideration  is 
sufficient.  A  promise  in  consideration  of  one  dollar,  that  a 
horse  which,  if  sound,  would  be  worth  $100,  is  so,  will  oblige 
the  promisor  to  pay  $100  if  the  horse  shall  prove  totally  worth- 
less by  reason  of  unsoundness,  and  $50  if  his  real  value  be 
less  by  half,  and  so  in  proportion.  Nor  could  the  claim  be  en- 
hanced by  reason  that  the  vendee  had  paid  $1000. 


NEW-YORK,  MAY,  1843.  627 

Cary  c.  Grammn. 

The  rule  undoubtedly  is,  that  the  agreed  price  is  strong  evi- 
dence of  the  actual  value  ;  and  this  should  never  be  departed 
from,  unless  it  be  clear  that  such  value  was  more  or  less  than 
the  sum  at  which  the  parties  fixed  it.  It  is  sometimes  the  value 
of  the  article  as  between  them,  rather  than  its  general  worth, 
that  is  primarily  to  be  looked  to — a  value  which  very  likely 
depended  on  considerations  which  they  alone  could  appreciate. 
Things  are,  however,  very  often  purchased  on  account  of  their 
cheapness.  In  the  common  language  of  vendors,  they  are 
offered  at  a  great  bargain,  and  when  taken  at  that  offer  on  a 
warranty,  it  would  be  contrary  to  the  express  intention  of  the 
parties,  and  perhaps  defeat  the  warranty  altogether,  should  the 
price  be  made  the  inflexible  standard  of  value.  A  man  sells  a 
bin  of  wheat  at  fifty  cents  per  bushel,  warranted  to  be  of  good 
quality.  It  is  worth  one  dollar  if  the  warranty  be  true  ;  but  it 
turns  out  to  be  so  foul  that  it  is  worth  no  more  than  seventy- 
five  cents  per  bushel.  The  purchaser  is  as  much  entitled  to  his 
twenty-five  cents  per  bushel  in  damages  as  he  would  have  been 
by  paying  his  dollar,  and  if  he  had  given  two  dollars  per  bushel 
he  could  recover  no  more.  So,  a  horse  six  years  old  is  sold  for 
fifty  dollars  with  warranty  of  soundness.  If  sound,  he  would 
be  worth  $100.  He  wants  eyesight,  and  thus  his  real  value  is 
reduced  one  half.  The  vendee  is  entitled  to  fifty  dollars  as 
damages  ;  and  could  recover  no  more  had  he  paid  $200. 

The  tests  of  real  value  or  the  falling  off  in  that  value  be- 
cause the  warranty  proves  to  be  false  is  one  thing.  The  price 
agreed  for  the  horse,  said  Lord  Denman,  C.  J.,  in  Clare  v. 
Maynard,  (7  Carr.  fy  Payne,  741,)  is,  I  think,  "  not  conclu- 
sive as  to  its  value,  though  I  think  it  very  strong  evidence." 
Again,  "  my  view  of  it  is,  that  the  fair  value  of  the  horse,  if 
sound,  is  the  measure  of  damages,  and  that  the  sum  the  plain- 
tiff gave  is  only  the  evidence  of  value."  The  plaintiff  gave 
45/.  for  the  horse,  and  had  sold  him  for  551.  with  warranty,  but 
was  obliged  to  take  him  back.  This  per  se  was  not  allowed 
as  a  ground  for  recovering  the  10/.  difference  ;  the  court  saying 
it  was  the  mere  loss  of  an  accidental  bargain.  But  the  \alue 
brought  by  the  horse,  on  being  sold  as  unsound  at  a  common 


628  CASES  IN  THE  SUPREME  COURT. 


Gary  v.  Gruman. 


horse  market,  was  received  as  evidence  of  the  loss  ;  and  the 
difference  between  the  price  thus  obtained,  and  the  price  paid, 
seems  to  have  been  taken  as  the  measure  of  damages,  there 
being  no  proof  of  the  value  of  the  horse  as  a  sound  one,  inde- 
pendently of  the  price.  Some  items  of  special  damage  were 
claimed  in  the  declaration  over  and  above  the  difference  of 
value,  part  of  which  were  allowed  and  part  disallowed.  The 
only  point  decided)  on  the  case  coming  before  the  whole  court, 
was,  that  the  accidental  loss  of  a  good  bargain,  on  the.  re-sale, 
did  not  form  a  proper  item  of  claim,  it  being  demanded  in  the 
declaration  as  the  loss  of  a  bargain.  It  was  there  admitted, 
however,  that  the  jury  might  otherwise  have  considered  the 
price  obtained  on  the  re-sale  as  evidence  of  the  real  value. 
Lord  Denman  cited  the  case  of  Cox  v.  Walker,  where  a  horse 
was  sold  to  the  plaintiff  for  100/.,  with  warranty  of  soundness, 
and  the  plaintiff  was  soon  after  offered  140/.  for  him.  The 
horse  proved  unsound  and  the  plaintiff  was  obliged  to  sell  him 
for  4:91.  Is.  The  chief  justice  left  the  offer  of  140/.  to  the  jury 
as  evidence  of  the  real  value  j  and  they  found  a  verdict  for  the 
difference  between  140/.  and  491.  Is. ;  viz.  90/.  13s.  This 
went  on  the  express  direction  of  Lord  Denman,  that  the  plain- 
tiff was  entitled  to  recover  the  actual  value  of  the  horse  as  a 
sound  one  at  the  time,  after  deducting  what  he  brought  as  an 
unsound  one.  That  direction  was  approved  by  him,  after  the 
case  had  been  argued  at  the  bar,  and  his  attention  had  been 
again  recalled  to  the  point  by  the  argument  in  Clare  v.  May- 
nardj  (6  Jldolph.  fy  Ellis ,  519.)  In  the  nisi  prius  report  of 
this  case,  Curtis  v.  Hannay  (3  Esp.  R.  82)  appears  to  have 
been  mentioned  by  Lord  Denman  as  bearing  in  favor  of  his 
rule.  That  action  was  for  the  price  of  a  horse,  at  a  time 
when  the  notion,  now  exploded,  prevailed,  viz.  that  the  buyer 
might  return  the  horse,  and  sue  for  the  money  paid.  The  de- 
fendant accordingly  had  offered  to  return  him,  but  the  plaintiff 
refused  to  receive  him, because  he  had  been  improperly  treated. 
Lord  Eldon  thought  the  refusal  proper  under  the  circumstan- 
ces ;  and,  contrary  to  another  rule  now  settled,  he  refused  to 


NEW-YORK,  MAY,  1843.  629 

Gary  ».  Gruman. 

allow  a  recoupment.  But  he  said,  "  he  took  it  to  be  clear 
Jaw,  that  if  a  person  purchase  a  horse  which  is  warranted,  and 
it  afterwards  turn  out  that  the  horse  was  unsound  at  the  time 
of  the  warranty,  the  buyer  might,  if  he  pleased,  keep  the  horse, 
and  bring  an  action  on  the  warranty,  in  which  he  would  have  a 
right  to  recover  the  difference  between  the  value  of  a  sound 
horse  and  one  with  such  defects  as  existed  at  the  time  of  the 
warranty."  Bridge  \.  Wain,  (1  Stark.  Rep.  504,)  \\asa  war- 
ranty that  "certain  pieces  of  scarlet  cloth,  taken  by  the  plaintiff 
with  a  view  to  a  sale  in  the"  Chinese  market,  were  scarlet  cut- 
tings. Turning  out  not  to  be  so,  Lord  Ellenborough  charged 
the  jury  that  the  plaintiff  was  entitled  to  recover  such  a  sum  as 
he  would  have  received  had  the  warranty  been  true  ;  and  he 
directed  the  jury  to  allow  the  value  of  the  goods  in  the  Chinese 
market.  The  case  was  moved  at  the  bar  on  the  question,  and 
a  new  trial  refused. 

The  rule  has  certainly  been  laid  down  without  express  quali- 
fication, that  the  measure  of  damages  is  the  difference  between 
the  real  value  of  the  horse  and  the  price  given.  (Caswell  v. 
Coarej  1  Taunt.  566.)  This  was  right  in  the  particular  case. 
No  evidence  of  actual  value,  independently  of  the  price  paid, 
was  given  or  offered.  Voorhees  v.  Ear/,  before  cited,  was  a 
warranty  that  60  barrels  of  flour  were  superfine.  They  proved 
to  be  of  inferior  quality  ;  and,  after  looking  at  the  cases,  we 
thought  they  gave  the  measure  of  damages  as  it  should  stand 
on  principle,  viz.  "  the  difference  between  the  value  of  the  60 
barrels,  at  the  time  of  the  sale,  considered  as  superfine  flour, 
and  the  value  of  the  inferior  article  sold."  (See  2  Hill,  291.) 
In  2  Phil.  Ev.  105,  Jim.  ed.  of  1839^  the  rule  is  laid  down 
thus  :  "  If  he  (the  purchaser)  keep  the  horse,  he  may  recover 
the  difference  between  the  value  of  such  horse  perfectly  sound, 
and  the  value  of  the  identical  horse  at  the  time  of  the  warranty." 
The  author  adds  several  cases  of  enhancement  arising  from  spe- 
cial damage,  and  illustrating  a  class  of  exceptions  which  we 
admitted  to  exist  in  Voorhees  v.  Earl.  Restricting  the  rule 
in  Caswell  v.  Coare  to  the  case  as  it  stood  on  the  evidence — 


630  CASES  IN  THE  SUPREME  COURT. 

Adsit  v.  Brady. 

and  so  it  should  clearly  be  restricted — there  is  no  discrepancy  in 
the  English  cases. 

It  is  impossible  to  say,  nor  have  we  the  right  to  enquire, 
whether  the  real  value  of  the  horse  in  question,  supposing  him 
to  have  been  sound,  would  have  turned  out  to  be  more  or  less 
than  the  $90  paid.  Suppose  the  jury  thought,  with  one  wit- 
ness whom  the  court  allowed  to  state  such  value  for  another 
purpose,  that  it  was  not  more  than  $80  j  the  plaintiff  then  re- 
covered ten  dollars,  not  on  account  of  the  defect,  but  because 
he  had  been  deficient  in  care  or  sourtd  judgment  as  a  purchaser. 
On  the  other  hand,  had  the  horse  been  actually  worth  $100, 
the  defendant  would  have  been  relieved  from  the  payment  of 
the  ten  dollars  because  he  had  made  a  mistake  of  value  against 
himself.  The  cause  might  thus  have  turned  on  a  question  en- 
tirely collateral  to  the  truth  of  the  warranty. 

In  confining  the  defendant  to  the  rule  of  Caswell  v.  Coare, 
as  an  unqualified  one,  we  think  the  court  below  erred ;  and 
that  for  this  reason  the  judgment  must  be  reversed.  We  di- 
rect that  a  venire  de  novo  issue  from  that  court  ;  and  that  the 
costs  shall  abide  the  event. 

Rule  accordingly. 


ADSIT  and  others  vs.  BRADY. 

When  an  individual  sustains  an  injury  by  the  misfeasance  or  nonfeasance  of  a 
public  officer  who  acts  or  omits  to  act  contrary  to  his  duty,  the  law  gives 
redress  to  the  injured  party  by  action  adapted  to  the  nature  of  his  case.  Per 
BR.ONSON,  J.  • 

It  is  the  duty  of  a  superintendent  of  repairs  on  the  canal,  when  he  finds  a  break  in  it 
or  a  sunken  boat  obstructing  the  navigation,  to  stop  the  breach  or  remove  the  ob. 
etruction  without  waiting  for  orders  from  the  commissioners ;  and  by  omitting 
to  do  so  he  will  render  himself  liable  to  persons  sustaining  damage  thereby. 

Otherwise,  if  the  omission  to  repair  resulted  from  obedience  to  orders  given  by  the 
commissioners.  Per  BRONSON,  J. 

The  fact  of  such  orders  having  been  given,  however,  will  not  be  presumed,  but 
must  be  shown  affirmatively.  Per  BRONSON,  J. 


NEW-YORK,  MAY,  1843.  53  j 

f  Adsit  r>.  Brady. 

Where  a  declaration  against  a  superintendent  stated,  in  subfUnce,  that  a  boat  which 
had  been  sunk  in  the  canal  rendered  the  navigation  unsafe  and  dangerous,  and, 
that  though  the  defendant  had  notice  &c.,  he  negligently  suffered  the  boat  to 
remain,  whereby  the  plaintiff's  boat  in  parasing  along  the  canal  was  injured; 
held,  sufficient  to  show  the  defendant  liable,  notwithstanding  the  want  of  an 
averment  that  he  had  public  money  in  his  hands  for  the  purpose  of  making  re. 
pairs. 

Held,  further,  that  the  declaration  need  not  aver  the  neglect  of  the  defendant  to 
have  been  wilful  and  malicious. 

Whether,  in  a  civil  action  against  commissioners  of  highways  for  non-repair  of 
bridges  &,c.,  the  declaration  must  aver  that  the  defendants  had  fundu,  quere. 

The  cases  of  Bartlett  v.  Crazier,  (17  John.  Rep.  439,)  The  People  v.  The  Com. 
missioner*  d>c.  of  Hudson,  (7  Wend.  474,)  and  The  People  v.  Adrit,  (2  Hill, 
619,)  commented  on.  -nrjl 

ACTION  on  the  case  against  the  defendant  for  neglecting 
his  duty  as  superintendent  of  repairs  on  the  Erie  canal,  in  con- 
sequence of  which  the  plaintiffs  sustained  an  injury.  The  first 
count  alleged  that  the  defendant,  on  the  29th  of  April,  1842, 
was,  and  ever  since  has  been,  a  superintendent  of  repairs  of 
the  Erie  canal,  having  section  number  one  of  the  canal  com- 
mitted to  his  charge ;  and  as  such  superintendent  of  repairs  it 
was  his  duty  to  keep  said  section  of  the  canal  in  good  repair, 
and  to  remove  therefrom  all  obstructions  to  the  convenient  and 
safe  navigation  thereof,  so  that  boats  and  vessels  usually 
navigating  the  canal  might  safely  and  conveniently,  and  with- 
out damage,  pass  upon  and  navigate  the  section.  That  the 
plaintiffs  were  the  owners  of  the  canal  boat  named  Angelica, 
used  in  navigating  the  canal  for  the  transportation  of  goods  &c. 
That  a  certain  other  canal  boat  was,  on  the  said  29th  of  April, 
sunk  in  the  waters  of  the  canal  in  the  section  thereof  under 
the  defendant's  charge,  to  wit,  at  Watervliet,  in  such  a  position 
and  in  such  a  manner  as  to  obstruct  the  navigation  of  the  ca- 
nal, and  render  the  navigation  unsafe  and  dangerous,  of  all 
which  the  defendant  had  notice  ;  and  thereupon  it  became  and 
was  the  duty  of  the  defendant,  as  such  superintendent,  to  re- 
move the  sunken  boat.  Yet  the  defendant,  not  regarding  his 
duty  &c.,  did  not  remove  the  sunken  boat,  but  negligently  and 
carelessly,  and  contrary  to  his  duty  in  that  behalf,  suffered  the 


632  CASES  IN  THE  SUPREME  COURT. 

Adsit  v.  Brady. 

boat  to  remain  and  continue  sunk  in  the  canal  from  the  said 
29th  of  April  until  the  15th  of  May  in  the  year  aforesaid,  ob- 
structing and  rendering  dangerous  the  navigation  &c.  By  rea- 
son whereof  the  plaintiffs'  boat  Angelica,  on  the  6th  of  May  in 
the  year  aforesaid,  the  boat  being  then  laden  with  goods,  wares 
&c.,  of  great  value,  in  navigating  and  passing  along  the  canal 
at  the  place  aforesaid,  ran  against  and  upon  the  sunken  boat 
and  was  thereby  greatly  damaged,  as  were  also  the  goods  with 
which  the  plaintiffs'  boat  was  laden,  and  the  plaintiffs'  boat 
and  goods  were  sunk  in  the  waters  of  the  canal.  By  reason 
whereof  &c.  The  second  count  was  substantially  like  the  first. 
The  defendant  demurred  to  the  declaration,  assigning  the  fol- 
lowing causes  :  1.  It  is  not  alleged  that  the  defendant  was  di- 
rected by  the  canal  commissioners,  or  either  of  them,  to  make 
repairs  on  his  section,  or  to  remove  the  sunken  boat ;  2.  It  is  not 
alleged  that  the  defendant  had  any  moneys  in  his  hands  for  the 
purpose  of  making  repairs  or  removing  obstructions ;  3.  It  is  not 
alleged  that  the  plaintiffs'  loss  was  occasioned  by  the  malicious 
or  wilful  neglect  of  the  defendant ;  4.  The  defendant,  being  an 
agent  of  the  stale,  is  not  personally  liable  to  the  plaintiffs  ;  and 
5.  The  defendant  being  a  sub-officer  and  bound  to  act  under  the 
direction  of  the  canal  commissioners,  or  one  of  them,  he  is  not 
liable  to  the  plaintiffs  in  this  action.  The  plaintiffs  joined  in 
demurrer. 

S.  Stevens,  for  the  defendant. 
S.  H.  Hammond^  for  the  plaintiffs. 

By  the  Court,  BRONSON,  J.  When  an  individual  sustains 
an  injury  by  the  misfeasance  or  nonfeasance  of  a  public  offi- 
cer, who  acts  or  omits  to  act  contrary  to  his  duty,  the  law 
gives  redress  to  the  injured  party  by  an  action  adapted  to  the 
nature  of  the  case.  This  principle  is  so  well  settled  that  it  is 
only  necessary  to  enquire  whether  there  be  any  thing  in  this 
case  to  take  it  out  of  the  operation  of  the  general  rule. 

Superintendents  of  repairs  on  the  canals  are  appointed  by 
the  canal  board,  (1  R.  S.  229,  §69,)  and  give  bond  for  the 


NEW  YORK,  MAY,  1841  533 

Adsit  v.  Brady. 

faithful  execution  of  their  trust,  (Id.  p.  236,  §  99.)  The  statute 
further  provides,  that  "  it  shall  be  the  duty  of  each  superin- 
tendent, under  the  direction  of  the  canal  commissioners,  to  keep 
in  repair  such  sections  of  the  canals  and  works  connected  there- 
with, as  shall  be  committed  to  his  charge  j  to  make  all  necessary 
contracts  for  that  purpose,  and  faithfully  to  expend  all  such 
moneys  as  shall  be  placed  in  his  hands  by  the  canal  commis- 
sioners, or  the  commissioners  of  the  canal  fund."  (Id.  §  100.) 
The  next  section  repeats,  that  the  superintendent  "  shall  be  un- 
der the  direction  of  the  canal  commissioners,  and  especially  of 
the  acting  commissioner  having  charge  of  the  line  of  the  canal 
on  which  such  superintendent  is  employed."  This  means 
no  more  than  that  the  superintendent  shall  be  under  the 
general  direction  of  the  commissioners,  and  shall  follow  their 
instructions,  if  any  are  given,  as  to  the  extent  and  manner  of 
making  repairs  and  the  mode  of  discharging  his  other  duties. 
It  does  not  mean  that  the  superintendent,  when  he  finds  a  break 
in  the  canal  or  a  sunken  boat  obstructing  the  navigation,  shall 
wait  a  month  for  the  next  visit  of  the  commissioner,  or  send  a 
messenger  for  orders,  before  he  stops  the  breach  or  removes  the 
obstruction.  The  thing  is  preposterous.  (Shepherd  \.  Lin- 
coln, 17  Wend.  250. )(a)  The  declaration  states  that  the  sunken 
boat  obstructed  and  rendered  the  navigation  of  the  canal  un- 
safe and  dangerous,  and  that  the  defendant  knew  it.  That  it 
was  his  duty  to  remove  the  obstruction  cannot  be  doubted. 

It  was  said  at  the  bar  that  an  action  will  not  lie  against  a 
deputy  of  the  sheriff  for  nonfeasance.  But  the  defendant,  al- 
though subject  to  the  direction,  is  not  a  deputy  of  the  commis- 
sioners ;  and  before  he  can  justify  this  apparent  neglect  of  du- 
ty, he  must  show  that  the  omission  resulted  from  obedience  to 
orders.  It  will  not  be  presumed  that  the  commissioners,  or 
any  other  public  officer,  gave  an  illegal  or  unjustifiable  com- 
mand. 

The  want  of  an  averment  that  the  defendant  had   public 

(a)  See  JfFadden  v.  Kingtbury,  (11  Wend.  667.) 
VOL.   IV.  80 


(534  CASES  IN  THE  SUPREME  COURT. 


Adsit  v .  Brady. 


money  in  his  hands  for  the  purpose  of  making  repairs,  was 
much  relied  on,  and  we  are  referred  to  cases  to  prove  such  an 
averment  necessary.  In  Bartlett  v.' Crazier,  (17  John.  439,) 
the  action  was  against  an  overseer  of  highways  for  not  repair- 
ing a  bridge,  in  consequence  of  which  the  plaintiff  had  sustain- 
ed an  injury.  It  was  said  by  one  member  of  the  court,  that 
means  to  make  the  repair  should  have  been  averred  j  but  the 
case  turned  mainly  on  the  ground  that  the  action,  if  it  could 
be  maintained  against  any  one,  should  have  been  brought 
against  the  commissioners,  instead  of  the  overseer  of  highways. 
In  The  People  v.  The  Commissioners  fyc.  of  Hudson,  (7  Wend. 
474,)  we  refused  to  compel  the  commissioners,  by  mandamus, 
to  re-build  a  bridge  which  would  cost  $700,  when  they  could 
not,  by  law,  have  funds  to  more  than  $250,  and  when  in  fact 
they  had  none  at  all.  In  The  People  v.  Adsit,  (2  Hill,  619,)  we 
held  that  the  commissioners  of  highways  were  not  answerable 
criminally  for  the  non-repair  of  bridges  without  an  averment 
in  the  indictment  that  they  had  funds.  It  has  not  yet  been 
decided  that  an  individual  pursuing  a  civil  remedy  must  make 
such  an  averment ;  and  as  an  original  question  I  should  think 
it  enough  to  show  that  the  law  imposed  the  duty  of  repairing, 
and  then  leave  it  to  the  officer  to  excuse  himself,  if  he  can,  by 
showing  the  want  of  funds.  But  we  need  not  settle  that  ques- 
tion. For  the  purpose  of  enabling  superintendents  of  repairs 
to  discharge  their  duties,  they  have  been  authorized  by  law  to 
make  contracts  binding  the  state  ;  (1  R.  S.  236,  §  99  •)  and 
if  the  defendant  had  no  public  money,  he  might  have  contract- 
ed for  the  removal  of  this  obstruction.  And  besides,  he  either 
had,  or  might  have  had,  funds  in  his  hands.  It  is  expressly 
provided,  that  the  commissioners  of  the  canal  fund  shall  ad- 
vance money  in  sums  not  exceeding  $5000  to  each  superinten- 
dent, for  which  an  account  is  to  be  rendered  as  often  as  once 
in  sixty  days.  (Id.  194,  §  6  ;  Id.  236,  §  100  to  103.  And  see 
Stat.  1837,  p.  518,  $  7,  8.)  The  defendant  either  had  funds 
or  he  was  in  fault  for  not  having  them  ;  and  where  that  ap- 
pears, it  clearly  cannot  be  necessary  for  the  plaintiff  to  make 


NEW-YORK,  MAY,  1843.  535 


MuiwcJ  r.  Lewi.. 


any  averment  on  the  subject.  If  some  of  these  provisions  had 
not  been  overlooked  by  the  counsel,  this  objection  would,  I 
presume,  have  been  abandoned. 

It  is  said  that  the  defendant  had  a  discretion  as  to  what  re- 
pairs were  needed,  and  consequently  that  his  neglect  should 
have  been  charged  to  be  wilful  and  malicious.  (Tompkins  v. 
Sands,  8  Wend.  462.)  But  clearly  the  defendant  had  no  dis- 
cretion to  leave  this  dangerous  obstruction  in  the  canal.  On 
the  facts  stated  in  the  declaration,  it  was  his  duty  to  remove  the 
nuisance  without  any  unnecessary  delay. 

Judgment  for  the  plaintiffs. 


MUXSELL  vs.  LEWIS. 

&.  mere  jta  prccarium,  or  right  resting  in  courtesy — e.  g.  an  anticipated  donation 
bom  government — is  not  assignable.  Per  COWEN,  J. 

L.  and  W.,  having  contracted  with  the  canal  commissioners  to  construct  certain 
bridges  on  the  Chcnango  canal  by  the  15th  of  October,  1836,  and  having  com- 
mcnccd  the  work,  agreed  with  M.  that  he  should  go  on  and  complete  it  at  his 
own  expense,  and  be  entitled  to  receive  from  the  canal  commissioners  the  com- 
pensation provided  for  in  the  original  contract  The  work  was  accordingly 
completed  by  M.,  and  he  received  his  pay.  Afterwards,  an  award  was  made  in 
favor  of  L.  and  W.  on  account  of  the  original  contract,  pnmiant  to  an  act 
passed  in  April,  1836,  providing  for  extra  allowances  to  contractors  on  tho 
Chcnango  canal,  (Sets.  L.  '36, p.  201,)  and  one  half  the  sum  awarded  was  paid 
over  to  L.  Held,  in  an  action  against  him  by  M.  to  recover  the  money  thus  re- 
ccived,  that  the  letter  had  no  right  to  it.  NELSON,  Ch.  J.  dissented. 

Even  in  the  cam  of  a  chose  in  possession,  a  sale  carries  no  more  than  the  legal 
right  which  the  vendor  had  at  the  time.  Per  GOTTEN,  J. 

ASSUMPSIT  for  money  had  and  received,  tried  at  the  Broome 
circuit,  in  August,  1842,  before  MOKELL,  C.  Judge.  The  case 
was  this  :  Lewis  (the  defendant)  and  one  Weed  agreed  in 
writing  with  the  canal  commissioners  to  construct  certain 
bridges  on  the  southern  division  of  the  Chenango  canal.  The 


636        CASES  IN  THE  SUPREME  COURT. 


Munsell  t.  Lewis. 


contract  was  dated  in  November,  1834,  and  the  work  was  to 
be  completed  by  the  15th  of  October,  1836.  On  the  29th  of 
January,  1836,  after  the  work  had  been  commenced,  Lewis 
and  Weed  assigned  their  interest  in  the  contract  to  the  plain- 
tiff. It  was  stipulated  in  the  contract  of  assignment  that  the 
plaintiff  should  complete  and  fulfil  the  original  contract  at  his 
own  cost  and  expense  and  save  Lewis  and  Weed  harmless 
therefrom,  he  to  have  the  benefit  of  what  they  had  previously 
done,  and  to  pay  such  expenditures  as  they  had  made  for  tools 
and  quarrying  stone.  It  was  also  stipulated  that  the  plaintiff 
should  "  receive  the  pay  from  the  canal  commissioners  for 
building  and  completing  said  bridges  according  to  the  [original] 
contract  above  mentioned,  except  $130  received  by  Lewis 
which  is  to  be  retained  by  him  as  a  compensation  for"  certain 
sawed  timber,  "  and  except  $70  received  by  Weed,  which  he 
is  to  retain  as  a  compensation  for"  certain  hewed  timber. 

The  plaintiff  executed  the  work  to  the  satisfaction  of  the  canal 
commissioners  and  received  his  pay.  On  the  first  of  March, 
1837,  one  of  the  canal  commissioners  paid  to  the  defendant  $300, 
being  the  half  of  a  sum  awarded  in  favor  of  the  defendant 
and  Weed  on  account  of  their  contract  with  the  state,  under 
the  act  of  April  16th,  1836,  providing  for  extra  allowances  to 
contractors  on  the  Chenango  canal.  (Sess.  Laws  of  1836,  p. 
201.)  The  plaintiff  claimed  that,  in  virtue  of  the  arrange- 
ment between  him,  Lewis  and  Weed,  he  was  entitled,  to  the 
money  thus  awarded,  and  asked  a  verdict  for  the  amount  re- 
ceived by  the  defendant,  with  interest.  The  circuit  judge  was 
of  opinion  that  the  money  belonged  to  the  original  contractors, 
and  directed  a  nonsuit.  The  plaintiff's  counsel  excepted,  and 
now  moved  for  a  new  trial  on  a  bill  of  exceptions. 

J.  A.  Spencer ,  for  the  plaintiff! 
J.  A.  Collier,  for  the  defendants. 


NEW-YORK,  MAY,  1843.  537 

Munscll  r.  Lewis. 

By  the  Court,  COWEN,  J.  The  question  is,  whether  the  assign- 
ment of  the  compensation  to  come  from  the  slate  carried  a 
right  not  only  to  the  moneys  the  state  had  agreed  to  pay,  but 
what  it  might  afterwards  award  as  a  gratuity. 

By  the  terms  of  the  sub-contract  the  plaintiff  was  to  receive 
his  pay  from  the  canal  commissioners  according  to  the  contract 
of  the  state.  He  was,  on  his  part,  to  perform  the  stipulations 
in  the  contract,  and  pay  to  Lewis  and  Weed  the  price  agrcul 
upon  as  the  value  of  the  bargain  made  between  himself  and 
them. 

After  their  bargain  was  made,  a  statute  passed  authorizing 
extra  allowances  to  the  contractors  on  the  Chenango  canal, 
under  which  sfn  award  was  made  in  favor  of  Lewis  and  Weed 
of  $600.  One  half  of  this  having  been  paid  to  Weed,  the 
plaintiff  sues  for  the  money  as  belonging  to  him. 

The  statute  authorized  the  extra  allowance  to  contractors. 
The  words  are,  "  Those  contractors  who  entered  into  contracts 
for  the  construction  of  any  part  of  the  Chenango  canal  &c., 
shall  be  entitled  to  receive,  on  the  completion  of  their  respec- 
tive jobs,"  the  extra  allowance  deemed  just  and  equitable  by 
the  canal  board.  Under  this  act  the  canal  board  awarded  the 
moneys  in  question  to  Lewis  and  Weed  ;  and  it  was  paid  to 
them  by  one  of  the  canal  commissioners  according  to  the  terms 
of  the  award.  (See  Sess.  Laws  of  1836,  ch.  149,  p.  201  ;  and 
Ass.  Doc.  121,  on  which  the  statute  was  founded.) 

The  plaintiff  was  neither  the  contractor  with  the  state,  nor 
was  there  any  privity  between  him  and  the  state.  He  paid 
Lewis  and  Weed  nothing  on  account  of  what  the  state  might 
afterwards  give  them,  but  took  a  stipulation  for  the  right  to 
receive  the  contract  price.  His  obligation  was  to  them.  It 
was  to  furnish  the  residue  of  the  materials  and  do  the  work 
which  was  wanting  to  finish  the  job.  The  whole  was  a  mere 
sub-contract.  Any  one  agreeing  with  him  to  assist  him  in  his 
job  would  be  in  one  sense  a  canal  contractor,  and  come  as 
much  within  the  statute  as  himself.  The  compensation  did  not 
consist  of  all  the  moneys  which  should  be  paid  to  Lewis  and 


638  CASES  IN  THE  SUPREME  COURT. 


Munsell  v.  Lewis. 


Weed  ;  but  the  pay  according  to  the  contract  with  the  state. 
The  extra  allowance  is  not  only  out  of  the  words,  but  was 
evidently  awarded  to  Lewis  and  Weed  on  account  of  the 
sacrifices  personal  to  themselves  which  obliged  them  sell  out 
their  interest  in  the  best  way  they  could  ;  and  we  are  called  on  to 
do  the  office  of  snatching  a  charitable  donation  from  the  man 
for  whom  it  was  intended,  and  giving  it  to  another  who  has 
suffered  nothing.  (See  Assembly  Doc.  of  1836,  JVb.  121.) 
But  if  the  real  suffering  was  on  the  side  of  the  plaintiff,  which 
the  form  of  the  gift  and  the  report  on  which  it  was  founded 
forbid  us  to  suppose,  what  rule  of  law  transfers  a  gift  from  an 
unworthy  donee  to  another,  because  his  wants  may  be  more 
obvious  1 

That  the  extra  allowance  was  a  mere  gratuity,  admits  of  no 
dispute.  No  one  will  pretend  that  the  sum  allowed  was  due 
from  the  state.  The  case  is  the  same  as  if  the  money  had  been 
presented  to^ny  man  who  had  never  dealt  with  the  plaintiff.  It 
is  like  a  pension  given  for  sacrifices  in  the  public  service,  or  an 
accidental  loss  by  fire.  Being  entirely  independent  of  the  con- 
tract, in  contemplation  of  law,  it  cannot  therefore  be  claimed 
that  it  passed  as  an  incident  to  the  stipulated  wages  due  from 
the  state  'f  nor  can  it  be  supposed  that  it  entered  into  the  intent 
of  the  bargain  between  the  defendant  and  the  plaintiff.  All 
that  passed  was  an  equitable  right  in  the  legal  interest  of  the 
defendant  at  the  time.  The  defendant  and  his  co-contractor 
held  the  whole  legal  interest.  That  and  that  only  was  trans- 
ferred. 

Even  in  case  of  a  chose  in  possession,  a  sale  carries  no  more 
than  the  legal  right  at  the  time.  A  man  sells  and  quit  claims 
all  right  in  a  farm  to  the  grantee  in  fee,  the  former  having 
no  title,  or  but  an  estate  for  years.  Though  the  absolute  estate 
afterwards  come  to  him  by  descent  or  purchase,  this  shall  not 
enure  to  the  grantee's  benefit. (a)  For  this  there  are  two  rea- 


(o)  See  McCarty  v.  Leggett,  (3  Hill,  134.) 


NEW-YORK,  MAY,  1843.  539 


*.  Lewfc. 


sons  ;  one  that  the  intent  to  pass  more  than  his  right  is  not  to 
be  supposed.  Both  parties  look  to  that  as  the  measure  of  com- 
pensation. Another  is,  that  the  right  which  the  grantor  after- 
wards acquires  is  a  mere  possibility,  and  therefore  incapable  of 
being  sold.  (Co.  Litt.  §  446,  p.  265  a.)  The  same  rule  pre- 
vails and  is  still  more  fully  illustrated  by  the  books  in  relation 
to  personal  property.  (Long  on  Sales,  4,  Boston  ed.  of  1839, 
and  the  cases  there  died.) 

The  last  point  of  view  is  of  itself  decisive.  Assume  that 
here  was  an  intent  to  transfer  a  right  to  all  the  compensation 
to  be  paid  by  the  canal  commissioners  in  virtue  of  the  contract, 
and  moreover  of  any  interest  or  gratuity  afterwards  to  be  grant- 
ed by  the  state  in  respect  to  the  contract.  We  are  met  at  the 
outset  by  the  words  of  Littleton.  (Co.  Litt.  §  446.)  "Also 
these  words  .which  are  commonly  put  in  such  releases,  scilicet, 
(quaequovumodoinfuturumhaberepotero,)  are  as  voide  in  law  : 
for  no  right  passeth  by  a  release  but  the  right  which  the  releasor 
hath  at  the  time  of  the  release  made."  The  same  rule  is  laid 
down  by  all  the  cases,  in  regard  to  personal  property.  "  If 
the  subject  of  the  intended  sale  have  no  existence  actually  or 
potentially,  there  can  be  no  valid  sale."  (Long  on  Sales,  3  ed. 
before  cited.)  Again ;  "  A  mere  possibility  or  contingency 
not  coupled  with  an  interest  in,  adhering  to,  or  growing  out  of 
property,  cannot  be  the  subject  of  a  valid  sale.  A  grant  of  the 
wool  of  all  the  sheep  the  grantor  shall  ever  have  is  void."  (Id. 
4  ;  Hob.  132  ;  Carleton  \.  Leighton,  3  Meriv.  667,  671.)  An 
assignment  of  the  freight,  earnings  and  profits  of  a  whaling- 
ship,  will  not  carry  the  oil  collected  by  her  in  a  subsequent  voy- 
age. (Robinton  v.  Macdonnell,  5  Mavle  $'  Selw.  228,  236.) 
Lord  Ellenborough,  C.  J.  said,  "  At  the  time  of  this  assign- 
ment, C.  &  P.  [the  owners  of  the  ship,]  had  no  property 
actual  or  potential  in  this  oil ;  it  was  altogether  matter  of 
chance  whether  any  of  it  would  have  been  obtained  ;  and  evrn 
the  voyage  in  which  it  was  obtained  does  not  appear  to  have 
been  in  contemplation."  A  case  and  argument  more  in  point 
with  the  present  could  scarcely  have  been  framed.  Who  could 


640  CASES  IN  THE  SUPREME  COURT. 


Munsell  v.  Lewis. 


have  contemplated  with  any  degree  of  confidence  that  the 
agents  of  the  state  would  volunteer  in  giving  away  moneys  to 
to  the  contractors  or  any  body  else  1  I  shall  not,  however,  go 
much  into  a  question  which  has  been  successively  considered 
and  illustrated  by  Sir  Thomas  Plumer  in  Campbell  v.  Mullettj 
(2  Swanst.  551,  571,  576  to  579,)  by  Washington,  J.  in  Vasse 
v.  Comegysj  (4  Wash.  C.  C.  Rep.  570,  573,  4,)  and  by  Story, 
J.,  in  the  same  case  on  error.  (1  Pet.  193,  213.)  All  agreed, 
that  a  future  voluntary  donation  or  bounty  from  a  government, 
is  not  property,  and  cannot  be  assigned  in  advance.  The  first 
rase  held  that  even  a  claim  against  a  government  for  the  wrong- 
ful seizure  of  property  was  not  assignable.  So  held  Mr.  Jus- 
tice Washington  in  deciding  Vasse  v.  Comegys  at  the  circuit  j 
and  the  judgment  was  reversed  on  the  sole  ground  that  the  sub- 
ject assigned  was  not  obtained  under  an  award  bestowing  it  as 
a  bounty,  but  as  a  debt  due  from  the  government. (a)  Randal  v. 
Cockran,  (1  Ves.  sen.  98,)  related  to  the  assignment  of  prop- 
erly captured  under  letters  of  marque,  for  the  benefit  of  the 
assignors  ;  and  it  was  held  that,  in  such  a  case,  the  award  of  the 
commissioners  for  distribution  enured  to  the  benefit  of  the  as- 
signees. No  case  goes  farther.  If  the  property  in  the  subse- 
quent donation  did  not  here  pass  to  the  plaintiff,  the  action  for 
money  had  and  received  does  not  lie.  To  warrant  such  an  ac- 
tion the  defendant  must  have  received  moneys  to  which  the 
plaintiff  is  entitled  as  actual  proprietor  under  a  contract  exe- 
cuted. He  must  have  jus  in  re.  Even  if  Lewis  and  Weed 
may  be  considered  as  having  agreed  to  pay  over  the  moneys 
on  receiving  them,  the  contract  is  but  executory,  and  the  action 
should  have  been  brought  against  both.  At  the  utmost,  the 
plaintiff  had  but  jus  ad  rem. 


(a)  As  to  the  assignability  of  pay  and  pensions -accruing  under  grants  from  gov- 
ernment, sec  Law  Magazine  (London)  Vol.  26,  p.  350,  ct  seq.  Sec  also  Browning 
v.  Bettis,  (8  Paige,  568,)  where  it  was  held  that  the  salary  or  compensation  of  a 
public  officer,  to  become  due  at  a  future  time  for  services  yet  to  be  completed, 
could  not  be  reached  by  a  creditor's  bill  in  chancery. 


NEW-YORK,  MAY,  1843.  54  J 


Munsell  t.  Lewi*. 


I  admit  that  a  man  may  bind  himself  to  pay  over  moneys  to 
be  recovered  even  for  a  personal  tort.  He  cannot  pass  them 
by  assignment  eo  nomine,  but  he  may  bind  himself  by  promise 
to  pay  them  when  received  by  him.  (Tke  People  ex  rel. 
Stanton  v.  Tioga  C.  P.,  17  Wend.  73,  and  cases  there  cited.) 
I  agree  that  a  man  may  contract  to  sell  lands  or  goods  yet  to 
be  purchased  by  him  in  market.  (Hibblewhite  v.  JU'JMoriwe, 
5  Mees.  tip  Welsh.  462,  overruling  Bryan  Y.  Lewis,  1  Ry.  4r 
Mood.  JV.  P.  Rep.  386.)  But  I  deny  that  a  man  may  traffick 
even  to  that  extent  in  the  charity  of  his  neighbors,  or  the  pros- 
pective bounty  of  his  government.  It  is  enough  to  say  here 
that  no  such  thing  was  attempted  ;  at  least  no  intent  of  that 
kind  is  apparent  on  the  face  of  this  contract.  But  suppose  it 
otherwise.  A  contract  in  prasenti  to  sell  goods  of  which  the 
vendor  is  not  owner  at  the  time,  and  has  no  other  means  of  ob- 
taining but  by  going  into  the  market  and  purchasing  them, 
has  been  holden  void  as  a  wager,  and  contrary  to  public  polii  y. 
(Bryan  v.  Lewis,  ubi  supra.)  That  has  been  overruled  ;  and 
the  contract  enforced,  not  as  a  sale,  but  as  a  promise  to  deliver 
the  goods  at  a  future  day.  But  would  such  a  decision  have 
been  overruled  if  it  had  related  to  moneys  yet  to  be  received 
on  charity,  or  as  the  bounty  of  the  government  ?  A  man's 
house  and  goods  are  lost  by  fire  ;  can  he  trade  in  the  pro 
of  his  misfortune  ?  Or,  to  put  the  case  in  the  words  of  Sir 
Thomas  Plumer  :  "  If  a  partnership  sustained  an  accidental  loss 
by  fire,  and  an  individual  were  to  make  a  donation  to  two  of 
the  partners,  in  compensation  of  their  loss,  would  that  be  part- 
nership property  1"  (2  Swanst.  571.)  To  follow  the  hypo- 
thesis into  the  consequences  contended  for  here,  suppose  the 
firm  had  made  an  assignment  of  their  effects  ;  could  the  as- 
signees claim  it  ?  The  supposition  would  be  scandalous,  even 
if  the  assignment  had  stipulated  for  such  a  consequence.  \Vhat 
rule  or  what  case  ever  extenden  the  doctrine  of  assignment  to 
matters  »of  imperfect  obligation,  or,  above  all,  sanctioned  a 
traffick  in  the  charities  of  life — begging  for  the  benefit  of  as- 
signees ?  The  impolicy  and  wickedness  of  such  a  thing  is  m 

VOL.  IV.  81 


642  CASES  IN  THE  SUPREME  COURT. 


Munsell  ».  Lewis. 


sufficient  answer.  If  community  have  been  plundered  by  such 
bargains,  the  law  has  not  yet  lent  itself  to  aid  the  conspiracy. 
To  authorize  similar  practices  upon  the  government,  would  be, 
if  possible,  still  more  scandalous.  I  have  heard,  to  be  sure, 
that  contractors  considered  themselves  as  holding  a  sort  of 
property  in  these  extra  allowances,  from  the  facilities  of  ob- 
taining them  on  the  faith  of  united  representations.  That,  how- 
ever, does  not  change  their  legal  character  from  mere  naked 
donations.  Allowing  them  to  be  made  a  subject  of  trade, 
therefore,  is  equally  objectionable  on  considerations  applicable 
to  private  charity,  but  more  so,  as  multiplying  individuals  who 
may  have  an  interest  in  deceiving  the  public  agents. 

Independently,  however,  of  public  policy,  I  am  of  opinion 
that  a  simple  expectancy  in  which  the  assignor  has  no  interest, 
and  which  is  unpurchaseable,  can  neither  be  assigned,  nor 
would  a  contract  for  future  assignment  be  valid.  A  mere  jus 
precariuin,)  a  right  resting  in  courtesy,  is  no  more  a  matter  of 
bargain  than  the  virtue  from  which  it  emanates. 

It  is  not  necessary  to  go  so  far  in  order  to  see  that  this  case 
is  with  the  defendant.  It  is  enough  to  see  that*  the  subject 
could  not  have  passed  by  an  assignment  containing  words  of 
present  transfer,  even  to  the  defendant's  assignees  in  bankrupt- 
cy or  under  the  insolvent  act ;  (Carleton  v.  Leighton^  Me-riv. 
667,  671  •)  a  fortiori  by  an  assignment  which  could  in  no 
view  carry  any  thing  bevond  an  equitable  interest. 

In  any  view,  I  think  the  nonsuit  was  right ;  and  that  the 
motion  for  a  new  trial  should  be  denied. 

BRONSON,  J.  concurred 

NELSON,  Ch.  J.  dissented. 

New  trial  denied. 


NEW- YORK  MAY,  1843.  543 

Greonvault  P.  Davit. 


GREENVAULT  vs.  DAVIS. 

In  order  to  maintain  an  action  on  a  covenant  of  warranty  or  for  quiet  enjoyment 
in  a  deed  of  lands,  a  lawful  eviction  in  some  form  must  be  shown. 

The  eviction,  however,  need  not  be  by  proccst  of  lam ;  but  it  i»  enough  that,  on  ft 
valid  claim  being  made  by  a  third  person  under  title  paramount,  the  plaintiff 
voluntarily  yielded  up  the  possession. 

Where  the  plaintiff  thus  surrenders  possession  without  a  legal  contest,  he  as. 
sumcs  the  burden  of  proving  that  the  person  entering  had  title  paramount. 

As  a  general  rule,  the  consideration  clause  in  a  deed  of  lands  is  open  to  explana- 
tion by  parol  proof. 

But  in  an  action  on  a  covenant  of  warranty  brought  by  one  to  whom  the  grantee  in 
the  deed  had  conveyed  ;  held,  that  the  grantor  was  not  at  liberty  to  show  the 
consideration  paid  for  the  land  to  be  less  than  the  sum  expressed  in  the  deed. 

Otherwise,  however,  had  the  action  been  between  the  immediate  parties  to  the 
deed.  Scmble,  per  NELSON,  Ch.  J.,  and  COWEN,  J. ;  BROXSOX,  J.  contra. 

COVENANT,  tried  at  the  Niagara  circuit,  in  September,  1841, 
before  DAYTON,  C.  Judge.  The  action  was  on  a  covenant  of 
•warranty  contained  in  a  deed  of  certain  lands,  dated  April  5th, 
1836,  executed  by  the  defendant  to  one  Daniel  Price.  The 
declaration  stated  that  the  defendant,  in  consideration  of  five 
hundred  dollars  to  him  paid,  conveyed  to  Price  in  fee,  with 
covenant,  &c.  ;  that  Price  entered  and  was  possessed,  and, 
being  seised,  he,  on  the  6th  of  June,  1836,  in  consideration  of 
$500,  conveyed  the  property  to  the  plaintiff  in  fee,  who  enter- 
ed, &c.  It  was  then  averred,  that,  before  the  defendant  con- 
veyed to  Price,  the  land  was  incumbered  by  a  mortgage  to  one 
Lewis  Blodget,  which  had  been  given  by  David  Eddy  while 
he  was  seised  of  the  land  j  that  after  default  in  paying  the 
mortgage  debt,  the  land  was  sold  to  Blodget  on  the  26th  of 
October,  1839,  by  virtue  of  the  power  of  sale  contained  in  the 
mortgage  ;  and  that  Blodget  thereupon  entered  and  took  pos- 
session of  the  land,  and  expelled  and  dispossessed  the  plaintiff. 
The  defendant  pleaded,  1.  non  estfactum,  and  2.  that  Blodget 
did  not  enter  and  expel  the  plaintiff,  concluding  to  the  country. 

On  the  trial,  the  defendant's  deed  to  Price  was  proved  and 


(J44  CASES  IN  THE  SUPREME  COURT. 


Grccavault  ».  Davis. 


given  in  evidence,  and  Blodget  testified,  that  after  he  purchased 
on  the  foreclosure  of  the  mortgage,  and  on  the  first  day  of 
April,  1840,  he  put  one  John  Gill  in  possession  of  the  land  as 
his  tenant,  and  that  Gill  was  still  in  possession  and  paid  rent  to 
the  witness.  The  defendant  moved  for  a  nonsuit,  on  the 
ground  that  no  eviction  had  been  proved.  The  motion  was 
denied,  and  the  defendant  excepted.  The  defendant  then  of- 
fered to  prove  that  the  consideration  money  paid  by  Price  (the 
plaintiffs  grantor)  to  the  defendant,  was  less  than  the  amount 
expressed  in  the  deed.  The  judge  excluded  the  evidence,  and 
the  defendant  excepted.  Verdict  in  favor  of  the  plaintiff  for  the 
consideration  money  expressed  in  the  deed,  with  interest.  The 
defendant  now  moved  for  a  new  trial  on  a  bill  of  exceptions. 

S.  Stevens,  for  the  defendant. 

H.  R.  Selden  4*  E.  J.  Chase,  for  the  plaintiff. 

By  the  Court,  BRONSON,  J.  As  the  premises  were  at  the 
time  unoccupied,  the  defendant's  deed  of  bargain  and  sale  to 
Price  carried  the  legal  seisin  of  the  land,  which  subsequently 
passed  by  the  deed  of  Price  to  the  plaintiff.  And  besides,  the 
pleadings  admit  that  the  two  grantees  respectively  entered  and 
were  seised  of  the  land.  The  only  ques.tion  is  upon  the  ous- 
ter of  the  plaintiff.  Blodget,  having  a  paramount  title,  enter- 
ed and  put  Gill  in  possession  as  his  tenant,  who  still  holds  the 
land.  Was  that  such  an  eviction  as  would  give  the  plaintiff 
an  action  on  the  defendant's  covenant  ?  On  an  express  cove- 
nant of  warranty  or  for  quiet  enjoyment  in  a  deed,  it  is  settled 
that  there  must  be  a  lawful  eviction  in  some  form  before  an  ac- 
tion can  be  maintained.  ( Waldron  v.  McCarty,  2  John.  471  ; 
Kortz  v.  Carpenter j  5  John.  120 ;  Kent  v.  Welch,  7  John. 
258;  Vahderkarrv.  Vanderkarr,  11  John.  122  ;  Kerr  v.  Shaw, 
13  John.  236  ;  Webb  v.  Alexander ,  7  Wend.  281 ;  and  see 
Rickert  v.  Snyder,  9  Wend.  416.)  But  the  rule  is  otherwise 
on  the  covenant  implied  from  the  word  demise  in  a  lease  for 
years,  and  the  lessee  may  have  an  action  if  he  has  been  kept 
out  of  possession  by  one  having  a  title  superior  to  that  of  the 


NEW  YORK,  MAY,  1843.  545 


Greenvault  t.  D*v»- 


lessor,  although  there  has  been  no  eviction.  (Holder  v.  Joy/or, 
#06.  12  ;  Grannis  v.  C/ar/c,  8  Cote.  36.)  But  as  covenants  can 
no  longer  be  implied  in  any  conveyance  of  real  estate,  (1  R. 
S.  738,  §  140,)  the  distinction  which  has  been  mentioned  be- 
tween cases  upon  express  and  those  upon  implied  covenants 
has  ceased  to  be  of  any  importance  in  this  state. 

There  are  some  dicta  in  the  books  which  favor  the  opinion 
that  there  must  be  an  eviction  by  process  of  law,  but  I  have 
met  with  no  case  where  the  point  was  so  adjudged.  In  Green* 
by  \.  Wilcocks,  (2  John.  1,)  the  fact  was  mentioned  by  Spen- 
cer, J.  that  there  was  no  averment  in  the  declaration  of  an 
eviction  by  process  of  law ;  but,  so  far  as  related  to  the  cove- 
nant of  warranty,  the  decision  turned  upon  the  want  of  an  alle- 
gation "  that  the  ouster  was  committed  by  any  person  having 
right,  or  superior  title."  Both  of  those  facts  should  have  been 
alleged.  (Kelly  v.  The  Dutch  Church,  2  Mil,  105.)  In  Lan- 
sing vt  Van  Jllstine,  (2  Wend.  563,  note,)  Savage,  C.  J.  said, 
"  that,  to  constitute  an  eviction  by  a  stranger,  there  must  be  a 
disturbance  of  the  possession  under  a  paramount  title  by  pro- 
cess 'of  law"  But  that  remark  was  not  necessary  to  the  decis- 
ion of  the  cause.  It  was  an  action  of  covenant  for  the  non- 
payment of  rent,  and  the  defendant  pleaded  in  bar  an  eviction 
from  three-eighths  of  the  premises  by  a  stranger.  This  made 
out  a  case  for  an  apportionment  of  the  rent,  but  not  a  good 
bar  to  the  whole  action  j  and  that  was  the  point  decided.  And 
besides,  the  pleas  stated  an  eviction  by  due  process  of  law.  to 
wit,  by  a  judgment  and  writ  of  habere  facias  possessionern  in 
ejectment.  It  is  evident,  therefore,  that  the  question  under 
consideration  did  not  arise  in  that  case.  There  are  some 
other  cases  where  an  expulsion  by  legal  process  is  roentioned,(o) 
and  some  of  the  precedents  in  pleading  are  that  way,  but  the 
point  seems  never  to  have  been  adjudged. 

Upon  principle,  I  can  see  no  reason  for  requiring  an  eviction 
by  legal  process.  Whenever  the  grantee  is  ousted  of  the  pos- 


(a)  See  the  dictum  of  Walworth,  chancellor,  to  that  effect  in  Hunt  T. 
(ante.  345. 348.) 


646  CASES  IN  THE  SUPREME  COURT. 


Greenvault  v.  Davis. 


session- by  one  having  a  lawful  right  to  the  property,  paramount 
to  the  title  of  the  grantor,  the  covenants  of  warranty  and  for 
quiet  enjoyment  are  broken,  and  the  grantee  may  sue.  In 
Foster  v.  Pierson,  (4  T.  R.  617,)  the  declaration  was  upon 
the  covenant  for  quiet  enjoyment  in  a  lease,  and  it  was  alleged 
for  breach  that  a  third  person,  having  lawful  right  &c.,  entered 
and  expelled  the  plaintiff.  The  defendant  demurred  on  the 
ground,  among  others,  that  the  declaration  did  not  show  an 
eviction  "  by,  or  in  pursuance  of,  or  under  any  legal  process  of 
law  ;"  but  that  point  was  abandoned  on  the  argument,  and 
judgment  was  rendered  for  the  plaintiff.  (See  also  2  Saund. 
181  6.  note  10  j  Ludwell  v.  Newman,  6  T.  R.  458  ;  Hodg- 
son v.  The  E.  1.  Company,  8  T.  R.  278.)  In  Hamilton  v. 
Cutts,  (4  Mass.  R.  349,)  the  grantee  voluntarily  surrendered 
the  possession  to  the  rightful  owner  without  suit,  and  this  was 
held  a  sufficient  ouster  to  entitle  him  to  an  action  on  the  cove- 
nant of  warranty.  That  decision  was  approved  by  thi«  court 
in  Stone  v.  Hooker,  (9  Cowen,  154.)  When  the  grantee  sur- 
renders, or  suffers  the  possession  to  pass  from  him  without  a 
legal  contest,  he  takes  upon  himself  the  burden  of  showing  that 
the  person  who  entered  had  a  title  paramount  to  that  of  his 
grantor.  But  there  is  no  reason  why  such  surrender,  without 
the  trouble  and  expense  of  a  law  suit,  should  deprive  him  of  a 
remedy  on  the  covenant.  The  grantor  is  not  injured  by  such 
an  amicable  ouster.  On  the  contrary,  it  is  a  benefit  to  him ;  for 
he  thus  saves  the  expenses  of  an  action  against  the  grantee  to 
recover  the  possession. 

It  may  be  inferred  in  this  case  that  the  premises  were  unoc- 
cupied ;  but  the  legal  seisin  was  in  the  plaintiff.  Blodget  then 
entered  and  still  holds  the  land  by  virtue  of  his  paramount 
title.  This  was  an  ouster  or  disseisin  of  the  plaintiff,  and  he 
is  well  entitled  to  an  action  on  the  defendant's  covenant, 

Was  the  defendant  at  liberty  to  show  that  the  consideration 
paid  for  the  land  by  Price  was  less  than  the  sum  expressed  in 
the  deed  1  I  think  not.  That  the  consideration  clause  in  a 
deed  is,  as  a  general  rule,  open  to  explanation  by  parol  proof, 


NEW-YORK,  MAY,  1843.  347 


Greenvault  r.   Davis. 


has  been  fully  settled  in  this  and  most  of  the  other  states. 
The  cases  on  this  subject  were  elaborately  reviewed  inJH'Crea 
v.  Purmortj  (16  Wend.  460.)  (6)  But  there  are  exceptions  to 
the  general  rule,  and  this  case  is,  I  think,  among  the  number. 

In  Garrett  v.  Stuart,  (1  McCord,  514,)  Johnson,  J.  said,  he 
was  inclined  to  the  conclusion  that  evidence  might  be  received 
to  show  that  the  consideration  was  either  greater  or  less  than 
that  expressed  in  the  deed  ;  and  a  similar  remark  was  made  by 
Parker,  C.  J.  in  Bullard  v.  Briggs,  (7  Pick.  533.)  But  the 
point  decided  in  those  cases  has  no  direct  bearing  upon  the 
question  now  before  us.  In  Morse  v.  IS/iattuck,  (4  N.  Hamp.  R. 
229,)  the  action  was  upon  the  covenant  of  seisin  in  a  deed 
which  expressed  a  consideration  of  $900,  and,  for  the  purpose 
of  reducing  the  damages,  the  defendant  was  allowed  to  prove 
that  the  consideration  actually  paid  was  only  $100.  And  in  a 
like  action  where  the  consideration  expressed  in  the  deed  was 
only  $1800,  the  plaintiff  was  allowed  to  enhance  the  damages 
by  proving  that  the  consideration  actually  paid  was  $2800. 
(Belden  v.  Seymour,  8  Conn.  R.  304.)  This  was  held  by  three 
judges,  Bissell,  J.  giving  no  opinion,  and  Hosmer,  C.  J.  dis- 
senting. There  is  one  view  of  the  question  involved  in  these 
two  cases — and  I  have  met  with  no  other  decision  to  the  like 
effect — which  was  not  noticed  by  either  of  the  learned  courts  j 
but  which  is,  I  think,  entitled  to  a  good  deal  of  weight.  What- 
ever he  the  price  actually  paid  for  the  land,  the  parties  may 
enter  into  such  stipulations  in  relation  to  the  title  as  they  think 
proper.  Covenants  may  be  wholly  omitted,  or  they  may  be 
so  framed  as  to  entitle  the  grantee  to  recover  either  more  or 
less  than  he  paid,  in  case  he  shall  be  evicted.  When  the  deed 
contains  no  covenant  but  that  of  seisin  or  general  warranty, 
the  consideration  is  not  inserted  as  a  mere  matter  of  form,  nor 
for  the  sole  purpose  of  giving  effect  and  operation  to  the  deed ; 
but  it  is  inserted  for  the  further  purpose  of  fixing  the  amount 


(&)  Sea  Coven  $  Hilft  Notet  to  PUl.  Ev.  p.  1441  rt  «f . 


648  CASES  IN  THE  SUPREME  COURT. 


Greenvault  v.  Davis. 


of  damages  TO  which  the  grantee  will  be  entitled  in  case  he  is 
evicted  Taking  the  consideration  clause  and  the  covenant 
together,  we  find  the  agreement  to  be,  that,  in  case  the  title  fails, 
the  grantor  will  pay  and  the  grantee  receive  the  particular 
sum  specified  in  the  deed  ;  and  the  one  party  cannot  be  re- 
quired to  pay  more,  nor  the  other  to  receive  less  than  that  sum, 
without  a  palpable  violation  of  the  contract.  At  least,  such 
are  my  present  impressions,  though  my  brethren  are  inclined 
to  a  different  conclusion.  But  it  is  not  now  necessary  to  de- 
cide the  question. 

In  both  of  the  cases  which  have  been  mentioned,  the  ques- 
tion arose  between  the  original  parties  to  the  contract.  The 
grantee  sued  his  immediate  grantor.  But  here  the  defendant's 
grantee  has  conveyed  to  the  plaintiff,  who  has  been  evicted, 
and  he  sues  as  assignee  on  a  covenant  running  with  the  land. 
And  whatever  the  rule  might  be  if  the  question  were  between 
the  original  parties  to  the  deed,  the  defendant  is  not  at  liberty 
to  set  up  this  defence  against  the  plaintiff.  The  original  par- 
ties knew  of  course  what  was  the  true  consideration  for  the 
grant ;  but  it  is  not  so  with  third  persons.  They  have  no 
means  of  knowing  what  consideration  was  paid  but  from  what 
the  parties  have  said  by  the  conveyance.  The  defendant  cove- 
nanted with  Price  and  his  assigns.  When  he  inserted  the  con- 
sideration and  covenant  in  the  deed,  he  virtually  said  to  any 
one  who  might  afterwards  come  in  as  assignee,  that  he  had  re- 
ceived the  whole  five  hundred  dollars,  and  would  stand  bound 
to  that  extent  that  the  title  should  not  fail.  The  plaintiff  acted 
upon  that  assurance  and  parted  with  his  money,  and  the  de- 
fendant should  not  now  be  heard  to  gainsay  the  admission.  It 
is  against  good  conscience  and  honest  dealing  to  set  up  this 
defence,  and  the  defendant  is  estopped  from  doing  it.  (Wei- 
land  Canal  v.  Hathaway,  S  Wend.  480  ;  Dezell  v.  Odell,  3 
Hill,  221,  per  Bronson,  /.)  This  point  was  virtually  de- 
cided in  Suydam  v.  Jones,  (10  Wend.  180.)  In  that  case  the 
the  plaintiff  sued  as  assignee  on  the  covenants  of  warranty  and 
for  quiet  enjoyment  in  the  defendant's  deed  to  one  Sandford — . 


NEW-YORK,  MAY,  1843.  549 


Grecnvault  ».  Davis. 


the  consideration  expressed  in  the  deed  being  $2500 — and  the 
plaintiff  had  been  evicted  by  virtue  of  a  mortgage  for  $2000, 
which  was  paramount  to  the  title  which  the  defendant  convey- 
ed. The  defendant  pleaded  an  agreement  between  himself 
and  Sandford  at  the  time  the  conveyance  was  executed,  that 
Sandford  should  pay  the  mortgage  a*  a  part  of  the  considera- 
tion money  for  the  land,  and  that  the  covenants  in  the  deed 
should  not  be  considered  as  extending  to  the  mortgage.  This 
was  in  effect  saying  that  only  $500  of  the  consideration  ex- 
pressed in  the  deed  had  in  truth  been  paid,  and  the  plea  was 
held  bad.  Sutherland,  J.,  who  delivered  the  opinion  of  the 
court,  said,  "  if  the  covenant  passes  to  the  assignee  with  the 
land,  it  cannot  be  affected  by  the  equities  existing  between  the 
original  parties,  any  more  than  the  title  to  the  land  itself."  And 
again,  "  to  allow  a  secret  agreement  in  opposition  to  the  plain 
import  of  a  covenant  running  with  the  land,  to  control  and 
annul  it  in  the  hands  of  a  bonajide  assignee,  would  be  a  fraud 
upon  suoh  assignee  which  the  law  will  not  tolerate/'  Although 
the  plea  was  also  thought  bad  upon  other  grounds,  I  see  no 
reason  for  questioning  the  principle  which  has  just  been  stated. 
Many  titles  have  been  received  upon  the  strength  of  cove- 
nants running  with  the  land,  and  whatever  may  be  the  rule  as 
between  the  immediate  parties  to  the  deed,  it  would  work  the 
grossest  injustice  to  allow  the  covenantor  to  go  into  the  ques- 
tion of  how  much  was  actually  paid  for  the  land  when  the  title 
has  failed  in  the  hands  of  an  assignee 

New  trial  denied. 

VOL.  IV.  82 


(550        CASES  IN  THE  SUPREME  COURT. 

Herrick  v.  Borst. 


HERRICK  vs.  BORST  &  WARNICK. 

Though  a  creditor  neglect  to  prosecute  for  his  debt  after  being  notified  to  do  so  by 

the  surety,  this  will  not  discharge  the  surety  if  the  principal  was  insolvent  at 

the  time. 
Otherwise,  if  the  principal  be  solvent  at  the  time,  and  tho  neglect  to  prosecute  is 

followed  by  subsequent  insolvency  on  his  part.    Per  COWEN,  J. 
A  surety,  however,  in  order  to  avail  himself  of  this  rule  at  law,  must  bring  his  case 

strictly  within  it.     Semble ;  per  COWEN,  J. 
The  cases  of  Pain  \.  Packard,  (13  John.  Rep.  174,)  and  King  v.  Baldwin,  (17  id. 

384,)  commented  on  and  disapproved.    Per  COWEN,  J. 
Semble,  that  the  principal  is  not  to  be  deemed  solvent  at  the  time  of  the  notice  to 

prosecute,  unless  he  be  then  able  to  pay  all  his  debts  according  to  the  ordinary 

usage  of  trade.    Per  COWEN,  J. 
Where  the  circuit  judge  charged  that  the  term  solvent,  in  such  case,  meant  that  the 

principal  was  able  to  pay  all  his  debts  from  his  own  means,  or  that  his  property 

was  so  situated  that  all  his  debts  might  have  been  collected  out  of  it  by  legal 

process :  Held,  that  the  charge  was  sufficiently  favorable  to  the  surety,  and  a 

motion  for  a  new  trial  made  in  his  behalf  was  therefore  denied. 
Held  further,  that  mere  probable  solvency  of  the  principal  in  reference  to  the  debt 

in  question,  at  the  time  of  giving  notice  to  prosecute,  would  not  bring  the  case 

within  the  rule. 
The  meaning  of  the  terms  solvent  and  insolvent,  as  applied  to  various  other  cases, 

discussed.     Per  COWEN,  J. 

ASSUMPSIT,  tried  at  the  Montgomery  circuit  on  the  14th  of 
May,  1840,  before  WILLARD,  C.  Judge.  The  action  was  by 
Herrick  against  Warnick  and  Borst,  on  the  following  note  : 

"  Port  Jackson,  Nov.  9th,  1835. 

Four  months  after  date,  for  value  rec'd,  we  or  either  of  us 
promise  to  pay  to  Palmer  Rowland  or  bearer^  eight  hundred 
and  fifty  dollars,  with  interest.  MARTIN  I.  BORST. 

GEORGE  WARNICK." 

The  defendants  pleaded  the  general  issue,  and  gave  notice 
of  special  matter.  On  the  trial,  the  defence  relied  on  was 
this :  The  note  was  given  for  money  lent  by  Rowland,  the 
payee,  to  Borst,  and  Warnick  signed  it  merely  as  Borst's  sure- 
ty. In  the  fall  of  1837,  Warnick  called  on  Rowland,  who 


NEW-YORK,  MAY,  1843.  651 

Herriek  t>.  Bont 

was  still  the  holder  and  owner  of  the  note,  and  requested  him 
to  collect  it ;  adding,  that  he  (Warnick)  could  not  consent  to 
stand  any  longer  as  surety  upon  it.  Rowland  made  no  effort 
to  collect  the  note,  and,  on  the  12th  of  September,  1839,  he 
transferred  it  to  Herriek,  the  plaintiff.  Shortly  after  the  trans- 
fer, and  previous  to  the  commencement  of  this  suit,  Borst  as- 
signed all  his  property  for  the  benefit  of  creditors. 

There  was  no  doubt  that  Borst,  when  he  made  this  assign- 
ment, was  utterly  insolvent.  The  question  was,  whether  he 
had  become  insolvent  before  Warnick  requested  Rowland  to 
prosecute  the  note.  On  this  point  much  evidence  was  adduced 
by  the  respective  parties,  tending  to  show  the  amount  Borst 
owed  in  1837,  the  state  of  his  property,  the  value  of  it,  &c. 

The  circuit  judge  charged  the  jury  that,  if  Borst  was  insol- 
vent when  the  request  to  prosecute  was  made  in  1837,  then 
the  defence  had  failed  ;  but  if  he  was  solvent  at  that  time,  and 
had  since  become  insolvent,  the  plaintiff  could  not  recover. 
The  judge  further  charged  that,  "  the  term  solvent,  in  law, 
meant  that  a  man  was  able  to  pay  all  Ms  debts  from  his  own 
means,  or  that  his  property  was  in  such  a  situation  that  ail  hit 
debts  might  be  collected  out  of  it  by  legal  process."  The  de- 
fendants' counsel  excepted,  and  requested  the  judge  to  charge 
that,  should  the  jury  find  Borst  to  have  been  in  such  a  situation, 
when  the  notice  to  prosecute  was  given,  that  the  note  might 
and  would,  in  all  probability,  have  been  collected  by  due 
course  of  law  out  of  his '  property,  Warnick  was  not  liable. 
The  judge  refused  so  to  charge,  and  the  defendants'  counsel 
again  excepted.  Verdict  in  favor  of  the  plaintiff  for  $814,95 — 
the  balance  due  upon  the  note.  The  defendants  now  moved 
for  a  new  trial  on  a  bill  of  exceptions. 

A.  C.  Paige,  for  the  defendants,  insisted  that  the  circuit 
judge  erred  in  charging  the  jury  as  he  did,  and  in  refusing  to 
charge  as  requested.  He  cited  and  commented  on  King  v. 
Baldwin,  (17  John.  Rep.  384  j)  Pain  v.  Packard,  (13  id.  174  ;) 
The  People  v.  Jansen,  (7  id.  332  j)  Ruggles  v.  Holden,  (3  Wend. 


652  CASES  IN  THE  SUPREME  COURT. 

Herrick  c.  Borst. 

216  ;)  Peel  v.  Tatlock,  (1  Bos.  &  Pull.  419  ;)  Speiglemyer  v. 
Crawford,  (6  Paige,  254,  260  ;)  Fulton  v.  Matthews,  (15  Jo^n. 
.  433,  4  ;)  T/te  Manchester  Iron  Man.  Co.  v.  Sweeting,  (10 
.  162  ;)  Huffman  v.  Hulbert,  (13  id.  377,  8  ;)  Thelusson 
\.  Smith,  (2  W7Aca#.  396  ;)  United  States  v.  Hooe,  (3  Cranch, 
73,  91  ;)  Prince  v.  Bartlett,  (8  id.  431.) 


D.  Wright  Sf  jY.  fli//,  Jr.,  for  the  plaintiff,  reviewed  the 
cases  referred  to  by  the  defendants'  counsel,  and  cited  the  fol- 
lowing additional  authorities  :  Shone  v.  Lucas,  (3  Dowl.  fy  Ryl. 
218  ;)  Baley  v.  Schofield,  (1  JWim/e  #  &?/.  338  ;)  Warner  v. 
Beardsley,  (8  Wend.  194  ;)  2  Star  A:.  Ev.  777,  note  (1),  6/A 
,/im.  ed.,  and  the  cases  there  cited;  The  People  v.  Russell,!(£ 
Wend.  570  ;)  Ingr.  on  Insolv.  9,  last  ed. 

By  the  Court,  COWEN,  J.  The  first  exception  was  to  the 
definition  of  the  term  solvency.  The  judge  charged  "  that  the 
term  solvent,  in  law,  meant  that  a  man  was  able  to  pay  all  his 
debts  from  his  own  means,  or  that  his  property  was  in  such  a 
situation  that  all  his  debts  might  be  collected  out  of  it  by  legal 
process."  He  was  requested  to  charge  that,  should  the  jury 
find  Borst  to  have  been  in  such  a  situation,  when  the  notice  to 
prosecute  was  given,  that  the  note  might  and  would,  in  all 
probability,  have  been  collected  by  due  course  of  law  out  of 
his  property,  the  surety  was  not  liable.  The  refusal  so  to 
charge  is  the  object  of  the  second  exception. 

The  meaning  of  the  word  solvency,  is  usually  tested  by  its 
opposite,  insolvency.  Suppose  a  man  unable  to  pay  all  his 
debts  from  his  own  means,  or  that  all  his  debts  cannot  be  col- 
lected out  of  those  means  by  legal  process  ;  is  there  any  doubt 
that  in  the  general  sense  of  the  word  he  is  insolvent  1  Debts 
are  paid  with  property  -,  and  "  in  one  sense,"  says  Mr.  Bell, 
by  which  he  no  doubt  intends  the  primary  and  ordinary  sense, 
"  insolvency  is  the  inadequacy  of  a  man's  funds  to  the  payment 
of  his  debts."  (2  BelPs  Com.  162.)  Notice  of  insolvency, 
by  the  46  Geo.  3,  ch.  135,  §  1,  avoids  transactions  with  a 


NEW-YORK,  MAY,  1843.  553 


Hcrrick  r.  Bant 


bankrupt,  intermediate  a  secret  act  of  bankruptcy  and  the  coin 
mission  issuing.  This,  says  Lord  Ellenborough,  means  tht 
bankrupt's  general  inability  to  answer  his  engagements. 
(Anonymous,  1  Camp.  492,  note.)  Other  cases  are  satisfied 
with  yet  less,  viz.  "  -when  he  is  not  in  a  condition  to  pay  his 
debts  in  the  ordinary  course  as  persons  carrying  on  trade  usu- 
ally do."  (Bayly  v.  Sckojield,  1  Maul.  If  Selw.  338  j  Shone 
v.  Lucas,  3  Dowl.  &  Ryl.  218.)  The  first  of  these  definitions 
is  most  favorable  for  the  defendant ;  and  I  apprehend  the 
charge  of  the  circuit  judge,  viz.  that  a  man's  inability  to  pay 
his  debts  by  his  own  means  amounts  to  insolvency,  will  not  be 
found  materially  variant.  It  is  certainly  possible  that  a  man 
in  such  a  condition,  if  pursued  by  an  action,  may  be  made  ef- 
fectually responsible,  though  the  event  would  not  be  very 
probable  •  at  least  not  for  the  whole  debt.  Enjoying  an  un- 
qualified exemption  from  imprisonment,  having  a  right,  and  it 
being  his  duty,  to  distribute  his  property  pro  rata  among  his 
creditors,  and  laboring  under  the  temptation  to  cover  it  up  for 
the  benefit  of  himself  or  his  family,  the  ultimate  collection 
could  seldom  be  regarded  as  more  than  possible.  The  question 
to  be  decided  is,  whether  under  our  rule  for  the  protection  of 
sureties  a  jury  should  be  allowed  to  speculate  on  the  event, 
and  bar  the  creditor  accordingly  as  they  may  guess  that  the 
suit  against  the  principal  would  have  been  successful  or  not. 
I  understand  the  rule  to  be,  not  that  the  jury  can  appraise  the 
possibility,  and  relieve  the  surety  in  proportion  to  the  value  of 
the  chance ;  but  that  if  the  principal  was  solvent  when  the  notice 
was  given,  and  the  neglect  to  sue  be  followed  b>  subsequent 
insolvency,  the  whole  action  is  barred.  The  result  is  the  same 
as  if  the  creditor  had  given  time  to  the  principal  debtor  by 
positive  contract.  The  latter  is  sufficiently  severe,  but  it  pro- 
ceeds on  a  logic  peculiar  to  itself.  The  remedy  of  the  surety 
is  suspended.  He  cannot  pay  the  debt  and  sue  his  principal ; 
or  rather  perhaps  a  new  obligation  has  been  fabricated  to  which 
he  never  assented.  Neither  has  any  application  to  the  mere 
delay  of  the  creditor.  The  surety  may  himself  pay  the  debt, 


654  CASES  IN  THE  SUPREME  COURT. 


Herrick  v.  Borst. 


and  sue  instantly,  with  all  the  chance  which  he  complains  that 
the  creditor  has  neglected.  In  the  event  of  a  loss,  his  own 
neglect  is  as  much  the  cause  as  that  of  the  creditor.  On  the 
clearest  solvency  and  greatest  neglect  of  the  creditor,  therefore, 
the  surety  comes  with  very  slight  pretensions  in  foro  consci- 
entia. 

Take  the  alternative  in  the  charge,  that  a  man  is  to  be  con- 
sidered as  insolvent  when  his  debts  cannot  be  collected  out  of 
his  property  by  legal  process.  This  is  the  common  case  of 
which  a  man  says  "  I  can  pay  all  my  debts  if  my  creditors 
will  let  me  alone."  Is  that  solvency  1  His  creditors  proba- 
bly will  not  let  him  alone  ;  or  if  they  will,  has  he  that  general 
ability  to  pay  of  which  we  have  been  speaking  1  It  depends 
on  the  forbearance  of  his  creditors  whether  he  shall  go  through. 
Such  a  man  Mr.  Bell  considers  as  more  particularly  insolvent. 
The  case  he  puts  is,  of  a  man  who  cannot  proceed  without  some 
general  arrangement  with  his  creditors,  some  indulgence  given 
in  point  of  time,  some  consent  that  his  payments  shall  be  made 
in  small  portions.  "  A  person  in  this  state,"  says  he,  "  is  truly 
insolvent ;  and  it  does  not  follow  that  he  is  not  insolvent  be- 
cause in  the  end  his  affairs  may  come  round  and  he  may  ulti- 
mately have  a  surplus  on  winding  them  up."  (2  Bellas  Com. 
162.)  If  his  funds  be  not  sufficient  to  meet  collections  by  pro- 
cess, it  follows  that  he  cannot  go  on  without  the  arrangement 
of  which  Mr.  Bell  speaks.  This  may  be  either  negative  or  posi- 
tive, tacit  or  express ;  the  status  of  the  debtor  is  effectually 
the  same  in  either  case. 

The  definitions  of  insolvency  cited  to  us  from  Cranch  and 
Wheaton  have  no  application.  They  were  founded  on  the 
words  or  object  of  the  statute  declaring  that  the  United  States 
shall,  as  a  creditor,  have  preference  in  case  of  its  debtor's  in- 
solvency. This  was  held  to  mean  a  state  of  legal  insolvency, 
by  which  the  debtor  had  parted  with  the  control  of  his  whoJe 
means.  (Ingr.  on  Insolv.  4,  1st  cd.)  The  word  often  varies  in 
signification  according  to  the  several  occasions  of  enquiring  into 
it.  Sometimes  an  estate  is  declared  forfeitabie  by  insolvency, 


NEW-YORK,  MAY,  1843.  655 



Herrick  c.  Boot 

The  object  here  is  different  from  that  of  the  rule  which  authorizes 
the  vendor  to  stop  goods  t'n  transitu  because  the  vendee  is  insol- 
vent, and  the  definition  of  the  word  would  vary  accordingly.  The 
insolvency  which  entitles  you  to  discontinue  an  action  without 
costs,  must  be  technical.  Yet  no  one  would  think  of  insisting  that 
a  man  is  to  be  deemed  solvent  until  he  comes  to  this,  within  the 
principle  on  which  the  surety  may  require  a  prosecution  to  be 
instituted.  The  question  here  is,  whether  the  chance  of  col- 
lecting be  equal  in  value  to  the  debt.  I  say  so,  because  the 
creditor  forfeits  the  whole  debt  as  the  penalty  of  his  neglect. 
The  loss  cannot  be  apportioned.  His  demand  was  valid  as 
against  the  surety  ;  and  I  can  conceive  of  no  reason  for  his 
losing  the  whole,  because  of  his  neglect  to  prosecute  another 
who  was  in  fact  good  for  little  or  nothing.  The  punishment  is 
out  of  all  proportion  to  the  delinquency. 

The  charge  proposed,  viz.  that  the  note  might  and  would, 
in  all  probability,  have  been  collected,  is  narrowing  the  case 
down  to  a  probable  solvency  in  respect  to  the  particular  debt ; 
and,  in  terms,  making  the  probability  equal  to  moral  certainty. 
If  the  jury  had  the  right  to  graduate  the  value  of  the  insol- 
vent's paper,  and  deduct  or  recoup  the  amount,  there  would  be 
a  show  of  propriety  in  the  request.  The  poorest  note  may  be 
considered  worth  something.  But  they  had  no  discretion  ;  at 
any  rate,  the  request  to  charge  left  them  none.  It  was  a  re- 
quest to  say  that  the  loss  of  the  probability,  to  be  judged  of  by 
the  fact  that  the  man  had,  by  successfully  struggling,  kept  his 
head  above* water,  should  bar  the  whole  action. 

The  view  taken  of  the  question  in  Huffman  \.  Hulbert,  (13 
Wend.  377,)  the  only  case  in  this  court  where  the  kind  or  de- 
gree of  insolvency  on  which  the  surety  is  to  be  discharged 
has  been  n<  ticecl,  is  not  inconsistent  with  the  direction  given  at 
the  circuit.  Mr.  Justice  Nelson  there  said,  the  rule  is  founded 
on  the  assumption  that  the  debt  is  clearly  collectable  by  suit ; 
and  upon  this  ground  only  can  the  rule  be  defended.  Again, 
he  says,  there  must  be  something  more  than  an  ability  to  pay 
at  the  option  of  the  debtor.  Among  other  reasons  he  mentions 


656  CASES  IN  THE  SUPREME  COURT. 


Herrick  v.  Borst. 


the  surety  having  a  remedy  of  his  own  by  payment  and  suit,  a 
reason  which,  as  I  mentioned,  would,  in  other  cases,  deprive 
the  party  complaining  of  all  claim ;  for  in  no  other  case  that  I 
am  aware  of  can  he  demand  compensation  or  raise  a  defence 
grounded  on  his  own  neglect.  What  principle  such  a  defence 
should  ever  have  found  to  stand  upon  in  any  court,  it  is  diffi- 
cult to  see.  It  introduces  a  new  term  into  the  creditor's  con- 
tract. It  came  into  this  court  without  precedent,  (Pain  v. 
Packard,  13  John.  174,)  was  afterwards  repudiated  even  by 
the  court  of  chancery,  (King  v.  Baldwin,  2  John.  Ch.  Rep. 
554,)  as  it  always  has  been  both  at  law  and  equity  in  England  ; 
but  was  restored  on  a  tie  in  the  court  of  errors,  turned  by  the 
casting  vote  of  a  layman.  (King  v.  Baldwin,  17  John.  384.) 
Platt,  J.  and  Yates,  J.  took  that  occasion  to  acknowledge  they 
had  erred  in  Pain  v.  Packard,  as  Senator  Van  Vechten  showed 
most  conclusively  that  the  whole  court  had  done.  The  decision 
was  obviously  erroneous  in  an  another  respect,  as  was  also  shown 
by  that  learned  senator.  It  overruled  a  previous  decision  of 
the  same  court  in  Le  Guen  v.  Gouverneur,  (1  John.  Cas.  492,) 
on  the  question  of  res  judicata ;  necessarily  so,  unless  it  be 
conceded  that  the  defence  belongs  exclusively  to  equity.  I  do 
not  deny  that  the  error  has  become  inveterate  ;  though  it  has 
never  been  treated  with  much  favor.  A  dictum  was  referred  to 
on  the  argument,  in  The  Manchester  Iron  Manufact.  Co.  v. 
Sweeting,  (10  Wend.  162,)  that  the  refusal  to  sue  is  tanta- 
mount to  an  agreement  not  to  prosecute  the  surety.  The  re- 
mark meant,  however,  no  more  than  that  such  a  neglect  as 
amounts  to  a  defence  is  like  the  agreement  not  to  sue  in  re- 
spect to  being  receivable  under  the  general  issue.  The  judge 
was  speaking  to  the  question  whether  the  defence  should  not 
have  been  specially  pleaded  as  it  was  in  Pain  v.  Packard.  On 
the  other  hand,  it  has  often  been  said  that  the  defence  should 
not  be  encouraged,  but  rather  discountenanced  ;  and  several 
decisions  will  be  found  to  have  proceeded  on  this  ground. 
( Warner  v.  Beardsley,  8  Wend.  198  ;  Fulton  v.  Matthews,  15 
John.  R.  433,  436  ;  Ruggles  v.  Holden,  3  Wend.  216.)  In 


NEW-YORK,  MAY,  1848.  557 

Hcrrick  v.  Bant 

Warner  v.  Beardsley,  Chancellor  Walworth  says,  the  principal 
must  be  solvent  when  the  request  is  made,  and  there  must  be 
delay  without  reasonable  excuse  till  insolvency  ensues.  Even 
if  we  are  bound  to  receive  the  defence  at  all,  which  he  seems 
to  doubt  on  reviewing  the  history  of  King  v.  Baldwin,  he  ex- 
pressed a  decided  repugnance  to  enlarging  the  operation  of  the 
rule.  Were  it  necessary,  we  ought  I  think  to  say,  that  the 
principal  shall  not  be  deemed  solvent  so  long  as  he  comes  with- 
in another  definition  which  I  cited,  viz.  if  he  be  unable  to 
pay  his  debts  according  to  the  ordinary  usage  of  trade.  (See 
M'CullocKs  Com.  Diet.,  "  Insolvent?  "Bankrupt;"  2  BeW» 
Com.  162;  1  Maule  ff  Selw.  350,  353,  4,  5 ;  1  Dowl.  tf  Ryl. 
218.)  Of  a  man  who  is  able  thus  to  pay,  it  may  in  general  be 
said  that  a  suit,  if  not  a  pressing  letter,  would  fetch  the  money  ; 
and  that  a  neglect  till  the  decline  of  his  affairs  supervened 
would  work  a  loss  to  his  surety  equal  to  the  debt.  It  is  not 
necessary,  however,  in  the  case  before  us,  to  go  so  far.  The 
judge's  charge  put  the  case  on  the  ordinary  and  more  obvious 
meaning  of  the  word.  (John.  Diet.,  Insolvency;  Ingr.  on 
Insolv.  4,  1st  ed.)  We  think  he  was  right. 

New  trial  denied. 


[Remainder  of  May  term  in  next  volume •.' 

VOL.  IV.  83 


INDEX. 


A 

ABATEMENT. 
See  PRACTICE,  24  to  26. 


ABSCONDING,  CONCEALED 
AND  NON-RESIDENT  DEBTORS. 

See  COMMISSION  TO  TAKE  TESTIMONY. 
DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT. 
LANDLORD  AND  TENANT,  4. 


ACCEPTOR. 

See  BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  7  to  12. 


ACKNOWLEDGMENT. 
See  REDEMPTION  or  LANDS,  8. 


ACTION. 

See  ASSUMPSIT. 
ATTACHMENT. 
BANKRUPT  ACT,  3. 
BILLS  OF  EXCHANGE  AND  PROXIMO. 

*T  NOTES,  7  to  12,  17,  20  to  22, 

26  to  28. 

COMMON  SCHOOLS,  3,  4. 
CONTRACT,  4,  5. 
CORPORATION,  3. 
COURT  MARTIAL. 
COVENANT. 
DAMAGES. 
DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  5,  6. 

[669) 


See  DEED,  4. 
EJECTMENT. 
EXECUTORS   AND  ADMINISTRATORS. 

1  to  3,  8. 

INSURANCE,  4  to  6. 
LIEN. 

MORTGAGE  or  CHATTELS,  St,  3. 
MORTGAGE  OF  VESSEL*. 
OFFICE  AND  OFFICER. 
REPLEVIN. 

ROADS  AND  HIGHWAYS,  3,  4. 
TROVER. 


ADMINISTRATOR. 

See  EXECUTORS  AND  ADMINISTRATORS. 


ADMISSION  OR  CONFESSION. 
See  ADVERSE  POSSESSION,  3. 


ADVERSE  POSSESSION. 

1.  A  court  or  equity  will  not  relievo 
against  a  deed  of  lands  on  the  sole 
ground  that  it  was  given  while  the 
complainant  was  in  possession,  claim- 
ing adversely  to  the  grantor ;  but  will 
leave  the  former  to  his  remedy  at  law. 
Per  COWEN,  J.  Keneda,  appellant, 
v.  Gardner  «J-  Gibbt,  respondent*,  469 


2.  The  statute  declaring  void  a  deed  if 
lands  held  adversely  to  the  grantor, 
was  meant  for  the  protection  of  the 
claimant ;  and  he  may  renounce  UM 
benefit  of  it.  Per  COWKJJ,  J.  is! 


660  INDEX. 

3.  Where  the  claimant,  on  being  sued 
in  ejectment,  gives  a  cognovit,  his 
subsequent  possession  cannot  be  re- 
garded as  adverse  to  the  plaintiff ; 
and  hence,  if  the  latter,  intermediate 
the  cognovit  and  the  entry  of  judg. 
ment,  convey  to  a  third  person,  the 
conveyance  will  be  upheld  as  valid, 
though  executed  while  the  claimant 
was  still  in  possession.  id 

See  EJECTMENT,  1  to  4. 


AFFIDAVIT  FOR  COMMISSION. 

See  PRACTICE,  27. 

AFFIDAVIT  FOR  JUDGMENT  AS 
IN  CASE  OF  NONSUIT. 

See  PRACTICE,  3,  8,  9,  18,  19. 

AFFIDAVIT  FOR  REFERENCE. 

See  PRACTICE  29,  30. 


AFFIDAVIT   OF    ATTENDANCE 
OF  WITNESSES. 

-See  COSTS,  13. 


AFFIDAVIT  OF  MERITS. 

General  requisites  of  an  affidavit  of  mer- 
its.   Note,  p.  64,  5. 

See  PRACTICE,  27,  28. 
VENUE,  1. 


AFFIDAVIT  OF  REDEEMING 
CREDITOR. 

See  REDEMPTION  OF  LANDS,  6  to  9. 


AFFIDAVIT  OF  SERVICE. 

See  PRACTICE,  38  to  40. 


AFFIDAVIT  TO  CHANGE 
VENUE. 

See  VENUE,  1,  5,  6,  18,19. 


AFFIDAVIT  TO  OBTAIN  AT. 
TACHMENT. 

See  DEBTORS,  ABSCONDING,  CONCEALED 
AND  NON-RESIDENT,  7  to  11. 


AFFIDAVIT  TO   OPPOSE 
CHANGE  OF  VENUE. 

See  VENUE,  14, 15,  18. 


AGENT. 

See  ATTORNEY. 

BANKS  AND  BANKING  ASSOCIATIONS,  1. 

DEED,  3  to  8. 

PRINCIPAL  AND  SURETY,  1. 


AGREEMENT. 
See  CONTRACT. 

ALDERMEN. 
See  CONSTITUTIONAL  LAW,  7,  14. 

ALLEGATION  AND  PROOF. 

See  BILL  OF  EXCEPTIONS,  3. 
CRIMINAL  LAW,  3,  8. 
INFANCY. 
INSURANCE,  3. 
PRACTICE  AT  THE  TRIAL,  2,  3. 

AMBIGUITY. 

See  BAILMENT. 

BILLS  OF  EXCHANGE   AND  PROMIS- 
SORY NOTES,  13, 25. 
EVIDENCE,  1  to  7,  13  to  17,  19,  20. 
GUARANTY. 

AMENDMENT. 

See  PRACTICED,  7,  31. 
REPLEVIN,  3. 

APPEAL  BOND. 
See  BOND,  1. 2. 


TNDKX 


APPOINTMENT  TO  OFFICE. 
See  CONSTITUTIONAL  LAW,  14. 

APPRAISEMENT. 

See  CORPORATION,  24  to  28. 


ARBITRATION  AND  AWARD. 

Where  a  bond  of  submission  to  arbitra- 
tors contained  a  stipulation  that,  in 
case  the  award  was  not  paid  or  ful- 
filled, judgment  for  the  penalty  of  the 
bond  might  be  forthwith  entered  up 
in  the  supreme  court  ;  held,  that  the 
prevailing  party  was  at  liberty  to  per- 
fect judgment  in  vacation  immediate- 
ly after  the  award,  without  a  special 
motion  to  the  court.  Hughes  v.  By. 
water, 


y 
551 


ARREST. 
See  WITNESS,  1  to  4. 

ARSON. 
•See  CRIMINAL  LAW,  8. 

ASSESSMENT. 

See  CORPORATION,  4  to  30. 
TAXES  AND  ASSESSMENTS. 

ASSETS. 

See  EXECUTORS  AND  ADMINISTRATORS. 
WILL,  6. 

ASSIGNMENT  OF  BREACHES. 
See  COVENANT,  2  to  9. 

ASSIGNOR  AND  ASSIGNEE. 

1.  In  general,  the  assignee  of  a  demand 
take*  subject  to  every  equitable  defence 
existing  against  it  in  the  hands  of  the 
assignor.  Per  COWEN,  J.  Miner  v. 
Hoyt,  193 


661 

1 .  Semlle.  that  this  rale  applies  eren  to 
ease*  where  the  •ssipmnnt  fa  abso- 
lute and  operates  a  transfer  of  tht  le- 
gal as  well  as  equitable  interest  fa  the 
demand.  ^ 

3.  Otherwise,  as  to  bilk  of  exchange 
and  promissory  notes,  transferred  to  a 
bonafide  holder.  PerCown.J.  id 

T 

See  BANKRUPT  ACT,  2. 

BILLS  or  EXCHANGE  AND  PROXIMO- 

SORT  NOTES,  27. 
CONTRACT,  6,  7. 
EVIDENCE,  9  to  11. 
EXECUTORS  AND  ADMINISTRATORS,  4 

to  7. 

INSURANCE,  3  to  6. 
LANDLORD  AMD  TENANT,  1  to  3. 
PAYMENT. 
SET-OFF. 
USURY,  13  to  15. 


ASSDMPSIT. 

1.  A,  sold  certain  lands  to  W.,  who  gave 
back  a  bond  and  mortgage,  which  the 
former  assigned  to  one  T. ;  and  after- 
ward, W.  re-conveyed  to  A.,  taking 
from  him  an  indemnity  against  Aft 
bond.  A.  then  conveyed  the  lands  to 
B.,  covenanting  for  quiet  enjoyment; 
and  B.  conveyed  them  to  H.  by  a  quit- 
claim deed.  T.  thereupon  {irooooitsd 
to  a  foreclosure  of  the  mortgage  in 
chancery,  and,  on  the  sale,  H.  be- 
came the  purchaser.  Held,  that  H. 
might  recover  against  A.  the  purchase 
money  paid  on  the  mortgage  sale,  in 
an  action  of  assumpsit  as  for  money 


paid  &.c.  to  A.'s  use.     Hunt 
don, 


345 


2.  The  decree  of  foreclosure,  and  the 
sale  under  it,  amounted,  in  equity,  to 
an  eviction ;  and  the  money  paid  by 
the  plaintiff  at  the  sale  should  be  re- 
garded as  a  payment  by  coercion  of 
legal  process,  for  the  use  and  benefit 
of  the  defendant  Per  WALWORTH, 
rhancellor.  id 

I.  Where  one  standing  in  the  situation 
of  a  surety,  whether  he  became  so  by 
actual  contract  or  by  operation  of  law, 
is  compelled  to  pay  the  debt  which  his 
principal  in  equity  and  justice  ought 
to  have  paid,  the  latter  is  liable  for  the 
amount  in  an  action  for  money  paid 
Ate.  to  his  use.  Per  WALWORTB, 
chancellor.  M 


662 

4.  A  verbal  promise  by  a  grantor,  made 
contemporaneously  with  the  execution 
of  a  deed  containing  a  covenant  for 
quiet  enjoyment,  that  he  would  pay 
off  an  existing  incumbrance  upon  the 
premises,  is  merged  in  the  deed,  and 
cannot  be  enforced.  Per  WALWORTH, 
chancellor.  id 


ATTACHMENT. 

1.  Though  an  action  against  the  sher- 
iff for  not  returning  &jfi.fa.  be  barred 
by  the  statute  of  limitations,  he  may 
still  be  proceeded  against  by  attach, 
ment  in  order  to  compel  a  return.   The 
People  ex  rel.  $c.  v.  Everest,  late 
sheriff  $c.  71 

2.  In  such  case,  however,  the  court  will 
not  impose  a  fine  for  the  benefit  of  the 
party  instituting  the  proceeding,  but 
will  discharge  the  sheriff  on  his  return- 
ing the  fi.  fa.  and  paying  costs.       id 

See  ATTORNEY. 

DEBTORS,  ABSCONDING,  CONCEALED, 

AND  NON-RESIDENT,  5  to  11. 
LANDLORD  AND  TENANT,  4. 
PRACTICE,  35. 


ATTEMPT  TO  COMMIT  OF- 
FENCE. 

See  CRIMINAL  LAW,  7  to  9. 


ATTORNEY. 

1.  In  order  to  give  the  right  of  proceed- 
ing summarily  against  an  attorney  to 
compel  the  payment  over  of  money 
in  his  hands,  it  is  not  essential  that  he 
should  have  received  the  money  in 
any  suit  or  legal  proceeding,  or  that  he 
should  have  been  employed  to  com- 
mence legal  proceedings.     Per  BRON- 
SON,  J.     Matter  of  S,  Dakin,  an  at- 
torney cfc.,  42 

2.  It  is  enough  if  the  money  was  re- 
ceived by  the  attorney  in  his  profes- 
sional character;  as,  where  the  de- 
mand on  which  he  received  it  was 
left  with  him  under  instructions  to  call 
for  payment,  or  obtain  better  security, 
but  without  any  directions  to   sue. 
Per  BRONSON,  J.  id 


3.  Otherwise,  if  the  circumstances  be 
such  as  not  to  afford  a  presumption 
that  he  was  entrusted  in  the  transac- 
tion by  reason  of  his  professional  char- 
acter, id 

4.  On  an  application  for  an  order  that 
D.,  an  attorney,  pay  over  moneys  re- 
ceived by  him  for  R.,  it  appeared  that 
L.»  who  was  a  land-agent,  took  a  bond 
and  mortgage  in  favor  of  R.  and  sent 
him  the  bond  but  retained  the  mort- 
gage for  the  purpose  of  receiving  pay- 
ments on  it;  that  several  years  after- 
ward,  L.,  with  the  assent  of  those  for 
whom  he  acted,  among  whom  was  R., 
transferred  his  land  agencies  to  D. 
who  attended  chiefly  to  that  kind  of 
business ;  that  D.  never  had  the  bond 
in  his  possession,  nor  had  he  instituted 
proceedings  to  collect  the  mortgage, 
or  been  instructed  to  do  so ;  but  he  re- 
ceived several  sums  of  money  on  the 
mortgage  and  refused  to  pay  them 
over,  though  demanded.    Held,  not 
a  case  for  the  summary  interference 
of  the    court,   and  the  motion  was 
therefore  denied.  id 

5.  Wnere  an  attorney  of  the  superior 
court  of  the  city  of  New- York,  who 
was  also  an  attorney  of  this  court, 
was  retained  to  defend  a  suit  pending 
in  the  former,  and,  in  consequence  of 
such  retainer,  received  certain  mon. 
eys  belonging  to  his  client ;  held,  that 
this  court  had  no  power  to  grant  a 
rule  requiring  the  attorney  to  pay  over 
the  money,  but  that  the  matter  be- 
longed   exclusively   to    the    superior 
court.    Ex  parte  Kctctium,  public  ad- 
ministrator of  the  city  of  New-York, 

564 

See  CORPORATION,  1. 

COSTS,  2,  8,  10,  11,  16. 
DEED,  3  to  8. 
PRACTICE,  21),  30. 
WITNESS,  2. 


AUDITING  TOWN  AND  COUN 
TY  CHARGES. 

See  SUPERINTENDENTS  OF  THE  POOR. 


AWARD. 

See  ARBITRATION  AND  AWARD. 


INDEX. 


£ 

BAIL. 

See  BOND. 

DEBTORS,  ABSCONDING,  CONCEALED, 

AND  NON-REBJDENT,  1  tO  4. 


BAILMENT. 

1.  A  written  instrument  acknowledging 
the   receipt  of  a  quantity  of  wheat 
"  in  store,"  imports  a  bailment  and  not 
a  tale.     Goodyear  v.  Ogden  <J-  Pearl, 

104 

2.  Such  instrument  is  in  the  nature  of  a 
contract,  and  therefore  not  open  to 
contradiction  in  the  sense  of  the  rale 
applicable  to  receipts  proper  ;  though 
its  import  may  be  explained  by  parol 
evidence  of  the  usage  among  dealers 
in  wheat.    Per  COWEN,  J.  id 

3.  Where  parol  evidence  is  given  of  a 
usage   to  treat  such   instruments  as 
importing  a  sale,  it  is  for  the  jury  to 
say  whether  the  usage  be  so  universal 
and  well  known  as  to  raise  the  pre- 
sumption   that  it  entered   into  and 
formed  a  part  of  the  contract  in  ques- 
tion.   Id.  and  Dawton  v.  Kittle,  107 

4.  A  memorandum  acknowledging  the 
receipt  of  a  quantity  of  grain  "on 
freight,"  imports  a  bailment  and  not  a 
sale.    Dawson  v.  Kittle,  107 

5.  But  the  memorandum  may  be  snown 
to  mean  a  sale  by  evidence  of  usage 
among  dealers  in  grain.    Per  NELSON, 

id 


6.  Such  evidence,  however,  must  be  BO 
full  and  explicit  as  to  leave  no  doubt 
of  the  existence,  extent  and  meaning 
of  the  usage,  and  that  the  parties  con- 
tracted in  reference  to  it  Per  NEL- 
SON, Ch.  J.,  id 

See  TROVER. 


BANKRUPT  ACT. 

I.  A  decree  of  bankruptcy  in  cases  of 
voluntary  application  does  not  relate 
back  BO  as  to  affect  a  previous  transfer 
of  the  bankrupt's  property  made  in 


663 

intitum  to  satisfy  an  individual  debt ; 
and  this,  though  the  tranefci  took 
place  after  the  filing  of  the  petition. 
Berthelon  v.  Bettt,  577 


2.  Accordingly,  where  the  petition  was 
filed  on  the  25th  of  August,  1843,  and 
five  days  afterwards  the  petitioner  wo 
ordered  to  make  an  assignment  under 
the  seventeenth  section  of  the  non-im- 
prisonment  act,  which  he  accordingly 
did  on  the  same  day,  and  obtained  a 
decree  for  his  discharge  as  a  bankrupt 
in  September  following ;  AeU,  that  the 
creditor  in  the  non-imprisonment  pro. 
ceeding  was  entitle*!  to  have  his  debt 
satisfied  out  of  the  proceed*  of  the 
property    assigned    therein,    notwith- 
standing the  claim  of  the  assignee  in 
bankruptcy.  id 

3.  Where  a  defendant,  after  suit  brought, 
obtained  a  decree  for  his  discharge 
as  a  bankrupt,  the  court  permitted  the 
plaintiff  to  discontinue  without  costs, 
though  a  certificate  of  the  defendant's 
discharge  had  not  yet  been  granted. 
Park  and  another  v.  Moore  mud  an. 
other,  599 

See  NON-IMPRISONMENT  ACT,  2. 


BANKS  AND  BANKING  ASSO. 
CIATIONS. 

1.  A  negotiable  draft  or  bill  of  exchange 
in  the  ordinary  form,  though  issued  by 
an  association  organized  under  the 
general    banking    law,   without    the 
sanction  of  the  comptroller,  will  bind 
the  association  as  in  favor  of  a  6otM 
fide  endorsee ;  and  this,  notwithstand- 
ing it  be  signed  by  the  cashier  only. 
Safford  v.  Wyekqf,  president  of  (JU 
Farmers'  Bank  of  Seneca  Co.,      449 

2.  Otherwise,  however,  as  between  the 
association  and  one  not  occupying  the 
position  of  a  bona  fide  holder,  if  it  ap- 
pear that  the  draft  or  bill  was  issued 
by  way  of  loan,  or  for  the  purpose  of 
being  put  in  circulation  as 


3.  How  far  these  associations  may,  as 
incidental  to  the  general  powers  ex- 
pressly conferred  on  them  by  statute, 
issue  negotiable  paper  without  the 
sanction  of  the  comptroller— e,  g.  fcr 
the  payment  of  their  debts,  the  trans- 


664 

fer  of  their  funds,  &,c.— discussed  and 
considered,  id 

See  EVIDENCE,  12,  13. 

TAXES  AND  ASSESSMENTS,  1,  2. 


BILL  OF  EXCEPTIONS. 

1.  The  decision  of  a  judge  upon  a  mat- 
ter resting  in  his  discretion  cannot  be 
reviewed  on  bill  of  exceptions.     Ra- 
pelye  $•  Purdy  v.  Prince  $  Prince, 

J  -I*' 

2.  Where  a  party  excepts  to  a  decision 
of  this   character,  the  judge  should 
strike  the  exception  from  the  bill  be- 
fore  affixing  his  seal  to  it.    Per  BRON- 
SON,  J.,  id 

3.  The  disregarding  of  variances  on  the 
trial  of  a  cause,  is,  in  general,  matter 
resting  in  discretion,   upon  which  a 
bill  of  exceptions  will  not  lie.     Mann 
v.    The  Herkimer  Co.  Mutual  Ins. 
Company,  187 

See  EJECTMENT,  6. 
ERROR. 
NEW  TRIAL,  4,  5. 


BILL  OF  PARTICULARS. 

See  COSTS,  10. 

PRACTICE,  13  to  17. 


BILLS  OF  EXCHANGE  AND 
PROMISSORY  NOTES. 

1.  Where  different  parties  to  a  note  or 
bill  are  sued  jointly  tinder  the  statute, 
(Sess.  L.  of  '32,  p.  490,  §  8,)  no  order 
of  the  court  is  necessary  to  enable  one 
of  such  parties  to   call   and  examine 
another.    Miller  v.  McCagg  $•  Mun- 
ger,  35 

2.  The  statute,  however,  applies  only  to 
such  parties  to  a  note  or  bill  as  could 
not  be  sued  jointly  at  the   common 
law ;  and  hence,  in  an  action  against 
two  makers  of  a  joint  and  several  note, 
one  cannot  call  and  examine  the  other. 

id 

3   Nor  can  the  action  be  severed  as  to 
the    makers,    and    judgment    taken 


INDEX. 


against  one  of  their,  without  the  other ; 
and  this,  whether  they  be  sued  jointly 
with  endorsers  or  not.  id 

4.  The  case  of  The  Bank  of  Genesee  v. 
Field,  (19  Wend.  643,)  reconsidered 
and  overruled.  id 

5.  Payment  of  a  note  cannot  be  demand- 
ed  on   the  fourth  of  July,  so  as  to 
charge  the  endorser ;  but  if  that  be 
the  last  day  of  grace,  demand  should 
be  made  on  the  third.     Per  BRONSON, 
J.      Sheldon,   ex'r   <J-c.   v.   Benham, 
imfd  $c.,  129 

6.  Service  of  notice  of  protest  cannot  be 
made  through  the  mail,  where  the  par- 
ty giving  it  and  the  one  to  whom  it 
is  sent  reside  in  the  same  village,      id 

7.  Where  the  drawee  of  a  bill  of  ex- 
change refuses  to  accept  or  pay,  the 
drawer  and  ehdorsers  are  liable  to  the 
holder  in  an  action  on  the  bill.     Suy- 
dam  and  others  v.  Westfall,  imp'd 

c.  211 


8.   After    acceptance,    the 


drawee    is 
the 


.    AIICI     uccinjuuiuc,     uic     uiawcc     IB 

prima  facie  the  principal  debtor,  the 
drawer  and  endorsers  being  regarded 
as  mere  sureties  5  and  consequently 
no  action  will  lie  against  the  latter  in 
the  name  of  the  acceptor.  id 

9.  Otherwise,  where  the  drawee  accepts 
and  pays  for  the  accommodation  of 
the  drawers ;  in  which  case  he  may 
recover  the  amount  hi  an   action  for 
money  paid  to  their  use.  id 

10.  If,  however,  the  acceptance  be  made 
with  knowledge  of  the  fact  that  one  of 
the  drawers  signed  merely  as  surety, 
he  will  not  be  liable  to  the  acceptor ; 
and  this,  whether  the  relation  between 
the  drawers  appear  on  the  face  of  the 
bill  or  not.  id 


11.  A   drawer  though    a   surety,  may 
make  himself  liable  to  the  acceptor  of 
an  accommodation  bill ;  e.  g.  by  join- 
ing with  his  co-drawers  in  an  express 
agreement  to  refund  to  the  acceptor 
&c.    Per  Ct>wEN,  J.  id 

12.  But  this  liability  must  be  evidenced 
by  a  written  agreement ;  a  parol  prom- 
ise would  he  void  by  the  statute  of 
frauds.     Semble ;  per  COWEN,  J.     id 


13.  In  general,  where  a  person  puts  his 
name  on  negotiable  paper,  he  will  be 
deemed  to  have  bound   himself  only 
according  to  the  import  of  what  he 
writes,  and  cannot  be  subjected  to  a 
different  obligation  by  parol  evidence. 
Per  COWEN,  J.  id 

14.  A   notarial   certificate  stating   that 
notice  of  protest  was  served  &.c.  by 
putting  the  same  in  the  poet  office,  di- 
rected &.C.,  is  a  sufficient  compliance 
with  the  statute,  (2  R.  S    212,  §  46, 
2d  ed.)  though   it  do   not  expressly 
state  by  whom  the  service  was  made. 
Ketchum  v.  Barber  and  others,      224 

15.  Since  the  act  of  1835,  (Seas.  L.  of 
'35,  p.  152,)  the  certificate  need  not 
specify  the  reputed  place  of  residence 
of  the  party  notified,  nor  the  post  of. 
ficc  nearest  thereto.  id 

16.  A  statement  of  a  particular  fund  in 
a  draft  or  bill  of  exchange,  if  inserted 
merely  as  a  direction  to  the  drawee 
how   to   reimburse  himself,  will   not 
vitiate  it.    KelUy  v.  The  Mayor  Ac. 
of  the  city  of  Brooklyn,  263 

17.  Accordingly,  in  an  action  against 
the  city  of  Brooklyn  by  an  endorsee 
of  an  instrument,  signed  by  the  mayor 
and  countersigned   by  the   clerk,  in 
these  words :  "  To  the  treasurer  of 
the  city  of   Brooklyn,  at   the   Long 
Island  Bank — Pay  A.  L.  or  order,  fif- 
teen hundred  dollars  for  award  No.  7, 
and   charge   to   Bedford  road  assess- 
ment" &c. :  Held  that,  not  withstand, 
ing  the  latter  clause,  the  instrument 
was  a  negotiable  bill  of  exchange,     id 

18.  A  municipal  corporation  may  MBUC 
negotiable  paper  for  a  debt  contracted 
in  the  course  of  its  proper  business ; 
and  no  provision  in  its  charter  or  else- 
where,   merely    directing    a    certain 
form,  in  affirmative  words,  should  be 
construed  as  taking  away  this  power. 
Per  COWEX,  J.  id 

19.  The  name  rule  applies  to  all  corpo- 
rations, whether  public  or  private.  Per 
COWEX,  ].  id 


20.  Where  the  charter  of  a  municipal 
corporation  provided  that  all  moneys 
should  be  drawn  from  the  treasury  in 
pursuance  of  an  order  of  the  common 
council,  signed  by  the  mayor  &.c. : 
Held,  that  a  negotiable  draft  on  the  I 

VOL.  IV.  84 


INDEX  605 

VBuuiy«  •pico  in  toe  i 
ed,  bat  famed  on  the  basis  of  a 
note  or  memorandum  in  the  corpora- 
tion minutes,  without  a  formal  order 
having  been  entered,  was  a  sufficient 
compliance  with  the  charter;  it  ap- 
pearing that  this  was  the  accustomed 
mode  of  drawing  moneys.  id 

21.  The  corporation  win  not  be  dis- 
charged from  bability  on  such  draft 
by  the  omission  of  the  holder  to  make 
presentment  to  the  treasurer  and  give 
notice,  provided  it  be  shown  that  it 
neither  has  suffered  nor  can  suffer 
from  the  omnaion.  id 


22.  Where  a  note  was  drawn  by  E.  and 
A.,  payable  to  W.  or  bearer,  and,  pre- 
vious to  the  delivery  to  the  latter,  P. 
guarantied  the  payment  of  it  by  an 
endorsement   thereon,   thus  :—  "  For 
value   received    I    guaranty  the  pay. 
ment  of  the  within  note,  and  waive 
notice  of  non-payment  :'*  Held,  in  an 
action  brought  by  a  subsequent  holder 
against  P.   and   the   makers  jointly, 
that  the  plaintiff  was  entitled  to  recov- 
er ;  he  having  declared  upon  the  com- 
mon money  counts  and  served  a  copy 
of  the  note  and  guaranty  with  his  dec- 
laration.    Prossrr,   imp'leaded    4/c.  v. 
Luqueer  and  other t,  ;  J  ) 

23.  Such  a  guaranty  constitutes  the  per. 
son  making  it  an  endorser  within  the 
statute  (Seat.  L.  of  '32,  p.  489)  regu- 
lating suits  on  bills  of  exchange  and 
promissory  notes.     Per  WAJ.WOKTU, 
chancellor.  id 

24.  And   »rmll(,   independently  of  the 
statute,  the  guarantor  may  be  treated 
as  a  joint  and  teveral  maker  of  the 
note  id 


25.    Parol  evidence  » 
prove  that  a  party  to  a  bill  or  : 
e.  g.  an  endorser  or  guarantor— a 
cd  to  contract  a   different   obligation 
from  that  imported  by  his  written  < 
gagcment     Per  WALWORTH, 


26.  In  an  action  on  a  promiwory  note 
brought  by  one  not  entitled  to  be 
treated  as  a  bona  jide  holder,  the  ma- 
ker may  defend  on  the  ground  that 
the  note  was  given  in  consideration 
of  land  sold  for  the  purpose  of  de- 
frauding creditors;  and  this,  thoofh 


666  INDEX. 

he  was  himself  a  party  to  the  fraud. 
Nellis  v.  Clark,  424 

27.  B.  conveyed  certain  lands  to  C.  for 
the  purpose  of  defrauding  creditors, 
and  took  back  a  bond  and  mortgage 
for  a  part  of  the  purchase  money. 
The  bond  and  mortgage  were  after- 
wards cancelled  in  consideration  of 
C.'s  giving  his  note  to  one  W.  for  a 
house  and  lot  which  the  latter  had 
contracted  to  sell  to  B.     Before  the 
time  arrived  for  executing  this  con- 
tract,  B.  obtained  a  discharge  under 
the  insolvent  act,  whereupon  his  as- 
signee   demanded    the  note   of  W. 
who  delivered  it  up  to  him  ;  and,  by 
a   subsequent    arrangement  between 
B.   and   W.,   the   contract  between 
them  was  also  given  up  to  be  can- 
celled.    Held,  in  an  action  by  one 
deriving  title  to  the  note  under  the 
assignee,  with  full  knowledge  of  the 
circumstances    under  which   it  had 
been  given,  that  C.  was  not  liable,  id 

28.  Where  there  is  enough  on  the  face 
of  a  negotiable  note  or  bill  of  ex- 
change to  create  a  suspicion  that  it 
was  issued  contrary  to  law,  and  to  put 
the  party  who  takes  it  upon  enquiry, 
he  is  not  entitled  to  be  considered  a 
bona  fide  holder.     Semble.     Safford 
v.  Wyckoff,  president  <f-c.  442 

29.  A  negotiable  note   or  bill   of  ex- 
change, though  given  by  a  corpora- 
tion having  only  an  incidental  right 
of  issuing  such  paper  in  certain  special 
cases,  must  be  presumed  to  have  been 
legally  issued  until  the  contrary  ap- 
pear.    Semble.  id 

30.  Where,  in  a  suit  against  the  maker 
and  endorsers  of  a  promissory  note, 
one  of  the  defendants  suffered  judg- 
ment by  default,  and  the  others  plead- 
ed the  general  issue ;    held,  that  the 
plaintiff  was  not  at  liberty  to  sever  as 
to   the   latter    and    proceed   to   trial 
against  one  only.     Paine  v.   Chase 
and  others,  5G3 

See  ASSIGNOR  AND  ASSIGNEE,  3. 

BANKS  AND  BANKING  ASSOCIATIONS. 
CONTRACT,  2,  3. 
EVIDENCE,  12,  13, 17,  18. 
EXECUTORS  AND  ADMINISTRATORS, 

3,  6  to  8. 

FRAUDS,  STATUTE  OF. 
PARTNERSHIP. 
PAYMENT. 
PLEADING. 


See  PRACTICE,  1,  2,  14. 
USURY,  3,  5  to  12. 


BONA  FIDE  HOLDER. 

See  BANKS  AND  BANKING  ASSOCIATIONS. 

1,2. 
BILLS  OF  EXCHANGE  AND  PROMTS. 

SORY  NOTES,  10,  26  to  29. 
PARTNERSHIP. 


BOND. 

1.  The  sureties  in  a  bond  given  upon 
appeal    from    a   justice's   judgment, 
pursuant  to  2  R.  S.  259,  §  189,  cannot 
be  made  liable  beyond  the  amount  cf 
the  penalty,  though  the  judgment  re. 
covered  by  the  appellee  in  the  com. 
mon  pleas  exceed  that  amount.     Cul- 
ver v.  Green  and  others,  570 

2.  In  an  action  on  such  bond,  pro- 
ceedings against  the  sureties  will  be 
stayed  on  their  paying  into  court  the 
amount  of  the  penalty  with  costs,    id 

3.  The  condition  of  a  sheriff's  bond  does 
not  extend    beyond   nonfeasance   or 
misfeasance  in  respect  to  acts  which 
h.p  is  required   to   perform  officially. 
Ex  parte  Reed,  572 

4.  The  party  moving  for  leave  to  prose- 
cute such  bond  must  show  affirmative- 
ly that  the  sheriff  has  been   guilty  of 
some  default  or  misconduct  in  his  of- 
fice, id 

5.  Accordingly,  where   the  papers   on 
which  the  motion  was  made  showed 
only  that  the  sheriff  had  failed  to  satis- 
fy a  judgment  recovered  against  him 
in  trespass   for  seizing  the  relator's 
goods  under  afi.fa.,  and  that  on  the 
trial  of  the  cause  the  sheriff  attempted 
to  justify  under  the  writ ;  held,  that 
these  facts  were  not  evidence  of  the 
seizure   having    been    made   virtvte 
officii,  and  the  motion  was  therefore 
denied.  id 

6.  Whether  the  motion  would  have  been 
granted  had  it  been  shown  that  the 
original  seizure  was  lawful,  and  that 
the  judgment  was  recovered  by  rea- 
son of  the  sheriff  having  rendered 
himself  a  trespasser  ab  initio,  QUEUE. 


INDEX 


607 


.  The  caws  of  Citrmaek  v.  The  Com. 
monwealth,  (5  Hinn.  184,)  and  Com. 
monwealth  v.  Stockton,  (5  Monrct, 
192,)  commented  on  and  questioned. 

id 

See  ARBITRATION  AND  AWARD. 

DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  1  to  4. 
USURY,  13  to  15. 


BOND  AND  WARRANT  OF  AT- 
TORNEY. 

See  JUDGMENTS  AND   EXECUTIONS,  10, 
11. 


BOUNDARY  IN  A  DEED. 
Ste  RIVERS  AND  CREEKS. 

BREACH,  ASSIGNMENT  OF. 
Fee  COVENANT,  2  to  9. 


BROOKLYN,  CITY  OF. 

See  BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  17  to  21. 
CORPORATION,  7. 


BY-LAW. 
See  CORPORATION,  31. 


CANAL  SUPERINTENDENT. 

See  OFFICE  AND  OFFICER,  5  to  8. 

CAPIAS    AD    RESPONDENDUM 

See  PRACTICE,  6,  7. 


CASES  OVERRULED,  DOUBTED 
OR  EXPLAINED. 

Bank  of  Gcnesee  v.  Field,  (19  Wend. 


643,)     reconsidered    and 
Miller  v.  tfCagg  $  Hunger. 


Bartlett  v.  Crazier,  ( 17  John.  439,) 
men  ted  on.     Adtit  and  other  u  v.  Bra 
ty.  C30 

Carmack  v.  The  Commonwealth,  (5 
Binn.  184,)  commented  on  •«xl  ones. 
tioncd.  Ex  parte  Reed,  57? 

Catwcll  v.  Coare,  (1  Taunt  566.)  cifd 
and  explained.  Cory  v.  Gruman,  625 


Cole  &.  Thunnan  v.  White,  (2C  Wend. 
511,)  reviewed  and  commented  on. 
Per  WALWORTH,  chancellor.  Han. 
ford  v.  Artcker,  271 

Coles  v.  Trustee*  of  Williami-burgh, 
(10  Wend.  659,)  adverted  to  and  ex- 
plained.  Sharp  v.  Johnton,  U9 

Commissioners  of  Canal  Fund  v.  Kemp. 
shall,  (26  Wend.  404,)  commented  on 
and  explained.  Per  WALWORTH, 
chancellor,  and  BRA  DISH,  president. 
Child  and  other*  v.  Starr  and  other*, 
369 

Commonwealth  v.  Stockton,  (5  Monr. 
192,)  commented  on  and  questioned. 
Ex  parte  Reed,  572 

De  Forest  v.  Strong,  (8  Conn.  Rep. 
513,)  commented  on  and  explained. 
Jackmn,  appellant,  v.  Gritwold,  re. 
tpondent,  529 

Dcnnistoun  v.  Lillie,  (3Blirh's  Rep. 202,) 
commented  on  and  doubted.  Per 
WALWORTH,  chancellor.  Altton  v. 
The  Mechanic*'  Mutual  Int.  Co.  in 
the  city  of  Troy,  329 


Douglass  v.  Howland,  (24  Wend.  35,) 
commented  on  and  explained.  R*. 
pelye  $  Purdy  r.  Prince  $•  Prince, 
119.  Jackton,  appellant,  v.  Urineold, 
retpondent,  522 


Green  v.  Burke,  (23  Wend.  490.)  com. 
mented  on,  and  the  reporter's  abstract 
of  it  corrected.  Goodyear  v.  Ogden 
$  Pearl,  104 

Hubbell  v.  Air.es,  (15  Wend.  378,)  ex. 
plained,  and  the  reporter's  abstract  of  it 
convcted.  Matter  of  Faulkner,  an 
abiconding  or  concealed  debtor,  598 

Johnson  v.  Bridge,  (6  Cowan,  693.)  Sam- 
ble,  this  case  was  overruled  in  Driffs 


668 

v.  Rockwell,  (11  Wend.  504.) 
v.  Hoyt, 


INDEX. 


Miner 
193,  197 


Kent  v.  Lowen,  (1  Campb.  177,)  over, 
ruled.  Ketchum  v.  Barber  and  others. 

224 

King  v.  Baldwin,  (17  John.  384,)  com- 
mented on  and  disapproved.  Herrick 
v.  Borst  $  Warnick,  650 

Magill  v.  Hinsdale,  (6  Conn.  Rep.  464,) 
commented  on  and  disapproved.  Per 
WALWORTII,  chancellor.  Townsend 
and  others  v.  Hubbard  $•  Orcutt,  351 

Pain  v.  Packard,  (13  John.  174,)  com- 
mented on  and  disapproved.  Herrick 
v.  Borst  $  Warnick,  650 

People  v.  Adsit,  (2  Hill,  619,)  comment- 
ed on.  Adsit  and  others  v.  Brady, 

630 

People  v.  The  Commissioners  &c.  of 
Hudson,  (7  Wend.  474,)  commented 
on.  Adsit  and  others  v.  Brady,  630 

People  v.  Wright,  (9  Wend.  193,)  com- 
mented on  and  explained.  Fenton  v. 
The  People,  126 

Smith  &  Hoe  v.  Acker,  (23  Wend.  653,) 
reviewed,  explained  and  approved. 
Per  BRADISH,  president,  and  HOP- 
KINS, senator.  The  same  case  re- 
viewed and  further  explained  by  WAL- 
WORTH, chancellor,  and  his  reasons  for 
the  vote  there  given  by  him  stated. 
Hanford  v.  Artcher,  271 

smith  v.  Whiting,  (9  Mass.  Rep.  334,) 
commented  on  and  overruled.  Bogert, 
appellant,  v.  Hertell  and  others,  re. 
spondents,  492 

Steele  v.  Whipple,  (21  Wend.  103,)  com- 
mented  on  and  explained.  Ketchum 
v.  Barber  and  others,  224 

Whitney  v.  Wright,  (15  Wend.  171,) 
commented  on  and  the  reporter's  ab- 
stract of  it  corrected.  Per  WALWORTH, 
chancellor.  Wheeler  v.  Ryerss  and 
others,  466 

Willey  v.  Paulk,  (C  Conn.  Rep.  74,) 
commented  on  and  explained.  Jack, 
son,  appellant,  v.  Griswold,  respon- 
dent, 522 

Year  Book,  18  E.  4,  fol.  4,  pi.  19,  com- 
mented on  and  explained.  Curtis  v. 
Hubbard,  487 


CERTIFICATE  OF  ACKNOWL- 
EDGMENT. 

See  REDEMPTION  OF  LANDS,  8 


CERTIFICATE  OF  DISCHARGE. 
See  BANKRUPT  ACT,  3. 

CERTIFICATE  OF  NOTARY. 

See  BILLS  OF  EXCHANGE  AND  PROMISSO 
RY  NOTES,  14,  15. 


CERTIFICATE  OF  PASSAGE  OF 
LAW. 

See  CONSTITUTIONAL  LAW,  8  to  10. 


CERTIFICATE   OF  SECRETARY 
OF  STATE. 

See  CONSTITUTIONAL  LAW,  9. 


CERTIORARI. 

See  DEBTORS,  ABSCONDING,  CONCEALED 

AND-NON-RESIDENT,  1  to  4. 


CHANCERY. 

1.  In  general,  a  defendant  in  chancery 
has  no  means  of  compelling  the  com- 
plainant to  produce  papers  to  be  used 
as  primary  evidence  against  himself, 
save  by  filing  a  cross  bill  for  discovery. 
Semble  ;  per  COWEN,  J.  The  Com. 
mercial  Bank  of  Buffalo,  appellants, 
v.  The  Bank  of  the  State  of  New. 
York  and  another,  respondents,  516 

2  After  a  paper,  however,  has  been  pro- 
duced and  used  as  evidence  before  an 
examiner,  by  the  complainant,  if  lie 
subsequently  withdraw  it  and  refuse 
to  let  the  defendant  or  his  witnesses 
inspect  it,  the  court  will  compel  its  re- 
storation to  the  custody  of  the  exam- 
iner, for  the  purposes  of  the  examina. 
tion,  on  motion ;  and  this,  though  a 
copy  of  it  only  was  marked  as  an 
exhibit,  and  not  the  paper  itself,  id 

3.  Exhibits  before  an  examiner  are  sub- 


INDEX. 


669 


jcct  to  the  use  of  both  partic*,  Air  tho 
purpose  of  examining  witncaaca  in  re- 
Bpcct  to  them.  id 

4.  The  difference  between  the  English 
practice  and  our  own,  in  this  parlicu. 
lar,  stated  and  considered.    Per  Cow- 

EN,  .1.  id 

5.  A  party,  by  the  act  of  producing  and 
proving  a  paper  before  an  examiner, 
thereby  makes  it  an  exhibit,  whether 
it  be  so  marked  or  not ;  and  ho  has 
no  power,  without  the  consent  of  his 
adversary,  to  qualify  the  effect  of  the 
act  so  as  to  prevent  tho  paper  from 
being   treated    as   an    exhibit.      Pn 
COWEN,  J.  id 

6.  If  an  examiner  omit,  through  mis- 
take,  to  mark  a  paper  as  an  exhibit 
which  has  been  produced  and  proved 
before  him,  the  mistake  may  be  cor- 
rected by  motion.     Per  COWEN,  J.  id 

7.  Whether  a  party  making  an  exhibit 
and  proving  it  before  an  examiner,  is 
bound  to  produce  cither  that,  or  the  de- 
position by  whicli  it  was  proved,  for 
the  purposes  of  the  hearing,  quere.   id 

d.  At  law,  the  production  and  proof  of  a 
paper  at  the  trial,  makes  it  evidence 
for  both  sides.  Per  COWEN,  J.  id 

9.  So,  semblf,  of  a  paper  produced  and 
proved  before  a  master  in  chancery  on 
reference.  Per  COWEN,  J.  id 

See  ADVERSE  POSSESSION. 
ASSU.MPSIT,  1,  2. 
CORPORATION,  30. 
DEED,  1,  2. 
EVIDENCE,  8  to  11. 
INJUNCTION. 

LIMITATIONS,  STATUTE  or. 
MORTGAGE  OF  LANDS. 
PAYMENT. 

PRINCIPAL  AND  SURETY,  1  to  5. 
USURY,  13,  14. 
WILL,  3  to  8. 


CHATTEL  NOTE. 

See  PJ.EADLMO. 

CHOSE  IN  ACTION. 

See  ASSIGNOR  AND  ASSIGNEE. 


CITIES  AND  VILLAGES. 


See  BILLS  or  EXCHANGE  AND  Pun  mail 

r.r  NOTES,  17  to  21. 
CoNrmrTioNAL  LAW,  C  to  13. 
CORPORATION,  4  to  31. 


CO-DEFENDANT. 
See  WITNESS,  8. 

COGNOVIT. 

Sec  ADVERSE  POSSESSION,  3. 


COMMISSION  ON  ADVANCES 
Ate. 

See  USURY,  3  to  10. 


COMMISSION  TO  TAKE  TESTI- 
MONY. 

A  commission  t<.  examine  witncwea 
residing  out  of  the  state  will  not  he 
granted  in  a  proceeding  under  tho 
statute  again.**  an  absconding,  con- 
cealed and  non-resident  debtor,  for 
the  purpose  of  enabling  the  debtor  to 
controvert  the  claims  of  creditors  be. 
fore  the  trustee*,  &.c.  Maltrr  of 
Whitney,  a  non.retident  dtbtur,  533 

See  PRACTICK,  27. 
USURY,  17  to  19. 
WITNESS,  5,  6. 


COMMISSIONERS  OF  HIGH. 
WAYS. 

See  ROADS  AND  HIGHWAYS,  2  to  4. 


COMMON  SCHOOLS. 

1.  Where  a  resolution  of  the  taxable  in- 
habitants  of  a  school  district  to  lay  a 
tax  for  building  a  s-chool  liowe  w  re. 
pealed  at  a  Kulwcquent  meeting,  and 
afterward  the  repealing  resolution  is 
itscK  repelled,  this  revives  the  original 
resolution.     Per    BRONSON,  J.     Oil* 
v.  Mead  and  otkert,  109 

2.  In  such  case,  however,  the  orifteal 

resolution   being  rendered    operative 


670 


INDEX. 


only  from  the  time  of  the  vote  which 
revived  it,  a  tax  list  prepared  under  it 
prior  to  the  second  meeting  cannot  be 
used  for  the  purpose  of  collecting  the 
tax  ;  though  otherwise,  semble,  of  a 
warrant  prepared  at  the  same  time,  if 
renewed  after  the  third  meeting  so  as 
•  t8  be  equivalent  to  new  process.  id 

3.  An  uction  may  be  maintained  against 
the  trustees  of  a  school  district  upon 
any  contract  of  their  predecessors  in 
office  which  the  latter  were  authorized 
by  law  to  make,  e.  g.,  a  contract  for 
the   wages  of  a  teacher,  or  for  the 
building  of  a  school  house ;  and  this, 
whether  the    defendants  have  funds 
in  their  hands   or  not.      Williams  v. 
Keech  and  others,  168 

4.  The  action,  in  such  case,  will  not  lie 
against  those  who  made  the  contract. 
Per  BRONSON,  J.  id 

o.  Where,  in  an  action  for  building  a 
school  house,  it  appeared  that  it  was 
built  under  a  contract  for  a  specified 
sum,  and  the  defendants  gave  evidence 
that  the  work  was  improperly  perform- 
ed ;  held,  not  competent  for  the  plain- 
tiff to  prove  in  answer  that  it  would 
have  been  worth  more  than  the  con- 
tract price  to  build  the  house  in  a 
workmanlike  manner.  id 


COMPETENCY  OF  WITNESS. 

See  BILLS  OF  EXCHANGE  AND  PROMISSO- 
RY NOTES,  1,  2. 
LIEN,  4  to  6. 
WITNESS,  5,  6,  8. 


CONFESSION  OF  JUDGMENT. 

See  ADVERSE  POSSESSION,  3. 
ARBITRATION  AND  AWARD. 


CONSIDERATION. 

See  BILLS  OF  EXCHANGE  AND  PROMISSO- 
RY NOTES,  26  to  28. 
CONTRACT,  4,  5. 
COVENANT,  14  to  16. 
FRAUDS,  STATUTE  OF. 
FRAUDULENT  SALE  OF  CHATTELS. 
GUARANTY,  2,  3. 
JUDGMENTS  AND  EXECUTIONS,  10. 


CONSOLIDATION  OF  ACTIONS. 

See  PRACTICE,  10  to  12. 

CONSTITUTIONAL  LAW. 

1.  The  legislature    can   only    exercise 
such  powers  as  have  been  delegated 
to  it,  and  when  it  transcends  these  lim- 
its,  its   acts  are   utterly  void.     Per 
BRONSON,  J.      Taylor  v.  Porter  and 
Ford,  140 

2.  The  effect  to  be  given  to  a  general 
grant  of  legislative  power  like   that 
contained  in  Art.  1,  §  1  of  the  consti- 
tution of  this  state,  considered  and 
discussed.  id 

3.  The  phrase  law  of  the  land,  in  Art. 
7,  §  1  of  the    constitution,  imports  a 
suit,  trial  and  judgment  according  to 
the  course  of  the  common  law,  or  in 
the  established  and  usual  mode  of  con- 
testing individual  rights.    Per  BRON- 
SON, J.  id 

4.  So  as  to  the  phrase  due  process  of  law, 
in  Art.  7,  §  7   of   the   constitution. 
Per  BRONSON,  J.  id 

5.  Private  property  cannot  be  taken  even 
for  public  use,  without  making  just 
compensation  to  the  owner.  id 

6.  The  cfause  of  the  constitution  of  this 
state  (Art.  7,  $  9)  requiring  the  as- 
sent of  two  thirds  of  the   members 
elected  to  each  branch  of  the  legisla- 
ture to  the  passage  of  every  bill  crea- 
ting, continuing,  altering  or  renewing 
any  body  politic  or  corporate,  extends 
to  all  corporations  properly  so  called, 
whether  they  be  public   or  private. 
Pur$g  v.  The  People,  384 

7.  The  act  of  May  14th,  1840,  (Sess. 
Laws  of  1840,  p.  257,)  excluding  al- 
dermen of  the  city  of  New- York  from 
the  right  of  sitting  as  judges  of  the 
court  of  general  sessions,  is  one  for  al- 
tering the  charter  of  that  city ;  and, 
not  having  received  the  assent  of  two- 
thirds  of  the  members  elected  to  each 
branch  of  the  legislature,  it  is  void,  id 

8.  For    the    purpose    of    ascertaining 
whether  an  act  was  passed  as  a  ma- 
jority bill  merely,  or  by  a  vote  of  two 
thirds,  courts  may  look  beyond  the 
printed  statute  book  to  the  certificate 


INDEX. 


671 


upon  the  original  engrossed  bill  on  file 
with  the  secretary  of  state.  Per  WAL- 
WORTH,  chancellor,  and  PAIGE  and 
FRANKLIN,  senators,  id 

9.  The  certificate  of  the  secretary  of 
state  endorsed  upon  the  bill  pursuant 
to  1  R.  S.  157,  §  11,  is  not  evidence 
that  it  was  passed  by  a  vote  of  two. 
thirds ;  at  all  events,  it  is  not  conclu. 
«te.    Per  WALWORTH,  chancellor,  id 

10.  If  the  bill  be  not  certified  by  the  pro. 
niding  officers  of  the  two  houses  re. 
spectively,  in  the  mode  pointed  out  by 
1  R.  S.  156,  §  3,  it  must  be  deemed, 
prima  facif  at  least,  to  have  been  past- 
ed  by  a  vote  of  less  than  two-thirds. 
Semole ;  per  WALWORTH,  chancellor, 
and  PAIGE  and  FRANKLIN,  senators,  id 

11.  The    journals    kept    by    the    two 
houses  of  the  legislature  may  be  re- 
sorted to  in  ascertaining  whether  an 
act  was  passed   by   a   vote  of  two- 
thirds.      Stmblc;    per    PAIGE     and 
FRANKLIN,  senators.  id 

12.  Towns  and  counties  were  not  corpo- 
rations in  any  sense,  when  the  con- ' 
stitution  was  adopted;  nor  are  they  j 
more   than   quasi   corporations   even 
now.    Per  PAIGE,  senator.  id 

13.  Forced  and  doubtful  interpretations 
of  the  language  of  the  constitution,  as 
contradistinguished  from  its  more  nat- 
ural and  popular  import,  are  not  to  be 
encourged  or  upheld.     Per    PAIGK, 
SCOTT  and  RUGKA,  senators.  id  I 

14.  The  clause  in  the  constitution  (Art. 
4,  §  7)  requiring  judicial  officers  to  be 
appointed  by  the  governor  and  senate, 
does  not   affect  the  right  previously 
vested  in  the  aldermen  of  the  city  of 
New-York  to  pit  as  judges  of    the 
court  of  general  sessions.     Per  WAL- 
WORTII,  chancellor,  and  SCOTT,  sena- 
tor, id 

See  ROADS  AND  HIGHWAYS,  1. 


CONSTRUCTION  OF  WRITTEN 
INSTRUMENTS. 

See  ARBITRATION  AND  AWARD. 
BAILMENT. 

BILLS  or  EXCHANGE  AND  PROMISSO- 
RY NOTES,  13, 23,  to  25. 


See  COVENANT,  1. 
DEED,  3  to  8. 
EVIDENCE,  1  to  7,  13  to  17,  19, 

20. 

GUARANTY. 
INSURANCE,  7,  10,  11. 
LANDLORD  AND  TENANT,  5,  6. 
REDEMPTION  OF  LANDS,  9. 
RIVERS  AND  CREEK*. 


CONTEMPT. 

Sec  ATTACHMENT. 
ATTORNEY. 
PRACTICE  35. 


CONTRACT. 

1 .  One  who  enters  upon  land  under  a 
contract  of  purchase,  but  who  after, 
wards  fails  to  make  payments  accord, 
ing  to  the  contract,  and  disavow*  all 
intent  to  make  them,  is  as  effectually 
a  wrong-doer  as  if  his  original  entry 
had  been  without  color  of  right    Per 
COWEN,  J.     Fuller  v.  Van  Getten, 

171 

2.  In  November,  1838,  a  contract  was 
entered   into  between  B.  of  the  one 
part  and  T.  and  D.  of  the  other,  by 
which  B.  agreed  to  accept  and  ftj 
drafts  drawn  by  T.  to  an  amount  not 
exceeding  $10,000;  in  consideration 
whereof,  T.  and  D.  agreed  to  deliver 
to  B.  2000  barrels  of  flour  by  the  15th 
of  June,  1839,  to  be  sold  for  the  pay. 
incut  of  the  drafts,  and  if  the  sum  re- 
ceived from  sales  of  the  flour  fell  short 
of  what   was  sufficient  to  meet  the 
drafts,  &c.,  T.  and  D.  were   to  pay 
the   deficiency.      Held,   that    drafts 
drawn  by  T.  and  made  payable  after 
the  1 5th  of  June,  1 839,  were  not  with, 
in   the   contract      Boyd   $  Boyd  \: 
Toicnsend  and  others,  IBS 

3.  Qverc,   whether  the  contract  em- 
braced any  drafts  save  such  as  were 
drawn  payable  at  sight.  id 

4.  It  is  a  general  rule  that   courts  will 
not  aid  cither  party  in  enforcing  an 
illegal  executory  contract ;  nor,  if  rx. 
ecuted,  will  they  aid  either  party  in 
setting  it  aside,  or  in  recovering  back 
what  has  passed  undo  it    ficllu  T. 
Clerk,  *M 


672  INDEX. 

5.  Various  cases  relating  to  this  doctrine 
commented  on  and  explained.  Per 
WALWORTH,  chancellor.  id 


6.  A  mere_;'u»  precarium,  or  right  rest- 
ing in  courtesy — e.  g.  an  anticipated 
donation  from  government — is  not  as- 
signable. Per  COWEN,  J.  Munsell  v. 
Lewis,  635 


7.  L.  and  W.,  having  contracted  with 
the  canal  commissioners  to  construct 
certain  bridges  on  the  Chenango  ca- 
nal by  the  15th  of  October,  1836, 
and  having  commenced  the  work, 
agreed  with  M.  that  he  should  go  on 
and  complete  it  at  his  own  expense, 
and  be  entitled  to  receive  from  the 
canal  commissioners  the  compensa- 
tion provided  for  in  the  original  con- 
tract. The  work  was  accordingly 
completed  by  M.,  and  he  received  his 
pay.  Afterwards,  an  award  was  made 
in  favor  of  L.  and  W.  on  account  of 
the  original  contract,  pursuant  to  an 
act  passed  in  April,  1836,  providing 
for  extra  allowances  to  contractors 
on  the  Chenango  canal,  (Sess.  L.  '36, 
p.  201,)  and  one  half  the  sum  award- 
ed was  paid  over  to  L.  Held,  in  an 
action  against  him  by  M.  to  recover 
the  money  thus  received,  that  the  lat- 
ter had  no  right  to  it.  NELSON,  Ch. 
J.  dissented.  id 


8.  Even  in  the  case  of  a  chose  in  pos- 
session, a  sale  carries  no  more  than 
the  legal  right  which  the  vendor  had 
at  the  time.  Per  COWEN,  J.  id 

See  ASSUMPSJT. 
BAILMENT. 

BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  11  to  13. 
COMMON  SCHOOLS,  3,  4. 
DAMAGES. 
DEED,  3  to  8. 
EVIDENCE,  1  to  11,  17,  18. 
FRAUDS,  STATUTE  OF. 
GUARANTY. 
INFANCY. 
INSURANCE. 
JUDGMENTS  AND  EXECUTIONS,  10. 


CONVERSION. 

See  TROVER. 
WILL,  3  to  8. 


CONVEYANCE  OF  LANDS. 

See  ADVERSE  POSSESSION. 
AssuMrsrr. 
CORPORATION,  7  to  30. 
COVENANT,  10  to  16. 
DEED,  1,  2. 
EVIDENCE,  19,  20. 
JUDGMENTS  AND   EXECUTIONS,   17 

to  19. 

REDEMPTION  OF  LANDS. 
RIVERS  AND  CREEKS. 


CORPORATION. 

1.  This  court  has  no  power  to  compel 
an   individual  to   furnish   the    certif- 
icate required  by  the  third  section  of 
the  "  act  to  amend  the  law  in  relation 
to  suits  against  foreign  corporations ;" 
(Sess.   L.  of  '42,  p.  227  ;)  and  this, 
though  he  be  an  attorney  of  the  court. 
Camp  and   Camp   v.    The   Lumber- 
man's Bank,  39 

2.  Nor  can  the  officers  of  a  private  cor- 
poration be  thus  compelled  to  furnish 
the  certificate.  id 

3.  If  the  person  applied  to  refuse  to  give 
the    certificate,   the    remedy   of   the 
plaintiff',  it  seems,  is  by  an  action  at 
law,  or  a  bill  of  discovery  in  equity. 
Per  BRONSON,  J.  id 

4.  A  power  given  to  a  municipal  corpo- 
ration to  sell  lands  for  taxes   imposed 
thereon,  does  not  authorize  a  sale  for 
taxes  which,  by  the  charter,  arc  to 
to  be  imposed  upon  owners  and  occu. 
pants   merely,    and    not    upon   their 
lands.    Per  BRONSON,  J.    Sharp  and 
others  v.  Speir,  76 

5.  Nor  will  a  power  given  to  fell  for 
taxes,  authorize  a  sale   for  a  mere  as- 
sessment for  benefit.  id 

6.  The  distinction  between  a  tax,  prop- 
erly  so   called,   and   an  assessment, 
stated   and   con  idered.     Per   BRON- 
SON, J.  id 


1.  The  eighth  section  of  the  act  of  1824 
amending  the  charter  of  the  village  of 
Brooklyn,  after  giving  the  trustees 
power  to  construct  wells  and  pumps 
within  certain  districts,  and  to  cause 
the  expense  to  be  assessed  among  the 
owners  and  occupants  of  lots  intended 


INDEX. 


673 


to  be  benefited  thereby,  authorized  the 
assessments  to  be  collected  by  distress 
of  goods  and  chattels:  neld  that, 
upon  an  assessment  under  this  section, 
the  trustees  could  not  sell  real  estate, 
though  another  section  expressly  gave 
the  power  of  selling  for  "  any  tax  of 
any  description  on  lands.1'  id 

8.  Every  statute  authority  in  derogation 
of  the  common  law,  to  divest  the  title 
of  one,   and  transfer  it  to   another, 
must  be  strictly  pursued,  or  the  title 
will  not  pass.     Per  BRONSON,  J.     Id. 
and  Sharp  v.  Johnson,  92 

9.  One  claiming  title  to  real  estate   in 
virtue  of  a  sale   made   to  him  by  a 
municipal  corporation  for  unpaid  taxes, 
mu«t,  in  ejectment  by  the  former  own- 
er, assume  the  onus  of  showing  that 
every  thing  has  been  regularly  done 
by  the  corporation  which   th<?  statute 
makes  essential  to  the   due  execution 
of  their  power  to  sell.    Per   BKON- 
SO.N,  J.  Sharp  and  others  v.  Spe ir,  76 

10.  It  matters  not  that  it  may  be  diffi- 
cult for  the  purchaser  to  comply  with 
such  a  rule ;  for  it  is  his  business  to 
collect  and  preserve  all  the  facts  and 
muniments  upon  which   the   validity 
of  his  title  depends.   Per  BRONSON,  J. 

id 

11.  The  recitals  in  the  conveyance  of 
the  corporation  to   the   purchaser  are 
not  evidence  against  the  fonner  owner, 
but  the  facts  recited  must  be  establish- 
ed by  evidence  aliunde.     Per   BROX- 
SON,  J.  & 

12.  If,  by  the  statute  under  which  the 
sale  took  place,  toe   corporation  was 
only  authorized   to   lay  the  tax  after 
the  presentation  of  a  petition  signed  by 
a  majority  of  persons  of  a  designated 
class,  and  the  purchaser  omit  to  show 
that  those   who   signed  the  petition 
were  a  majority,  &c.  he  will  fail  in 
making  title. 

13.  So,  temble,  should    the  purchaser 
omit  to  prove   that  the  petition   wat 
genuine. 

14.  The  decision  of  the  officers  of  the 
corporation  who  are  to  act  on  such 
petition,  that  it  is  signed  by  a  majori- 
ty,  cannot  be  made  available  as  i 
judicial  determination  of  the  feet    id 

VOL.  IV. 


15.  Where  power  is  given  to  a 
corporation  to  impose  an  " 
tax  upon  the  landt  of 


tax  upon  i 

to  be  benefittcd,  and  to  sell  (A* 
in  case  of  non-payment,  the  i 
should   describe  the  land*  ;  and  if 
•ale  be  made  under  an  assessmei 
which  does  not  describe  or  eren 
tion  any  land,  the  purchaser  will  ac- 
quire no  title.  id 

6.  So,  if  the  corporation  be  required  by 
its  charter  to  publish  an  advertisement, 
previous  to  the  sale,  requiring  the 
owner  of  such  lands  to  pay  the  t?irt 
or,  in  default,  that  they  will  be  sold 
&.C.,  and  the  advertisement  published 
neither  describes  the  lands  sufficiently, 
nor  names  the  owner.  id 

.7.  One  claiming  title  to  real  estate  in 
virtue  of  a  sale  made  to  him  by  a 
municipal  corporation  for  an  unpaid 
aascsnncnt  of  the  expense  of  opening 
a  street,  must,  in  ejectment  by  the  for- 
mer owner,  assume  the  omit  of  proT. 
ing  that  the  corporation  has  complied 
with  all  the  requisites  of  its  charter 
both  in  respect  to  laying  out  the  street 
and  making  the  assessment  Skarf 
v.  Johnson,  92 

18.  If,  by  the  charter,  the  corporation 
was  not  authorized   to   lay   out  the 
street  and  proceed  to  the  assessment 
except  upon  "  application  in  writing 
of  a  majority  of  the  persons"  liable  to 
be  assessed  'therefor,  and  the  purchas. 
er  do  not  show  that  those  who  rigned 
the  petition  constituted  a  majority  fee.. 
he  will  fail  in  making  title.  id 

19.  So,  if  it  be  not  shown  that  those  who 
signed   the   application  were  persons 
liable  to  be   antued  tat  the  street 
Semble.  id 


20.  Where  the  expense  of  laying  out  a 
street  is  required  to  be  assessed  "am**f 
the  ownert  dec.  of  the  sereral  Hotws 
and  lots   intended  to  be  bencfittod," 
each  owner  must  be  assessed  by  rrm. 
self,  and  in  reference  to  his  particular 
property.  *• 

21.  If  power  be  given  to  a  municipal 
corporation  to  impose  an  improvement 
tax  upon  thr  landt  of  person  - 

cd  to  be  benefitted,  and  to  sell  Ik* 
tame  in  case  of  non-payment,  the  as. 
sessmcnt  should  describe  the  lands  so 

85 


INDEX. 


674 

that  they   can  be  identified,  or  the 
sale  will  be  void.    Per  BRONSON,  J. 

id 

22.  And  where  the  corporation   making 
such  sale  is  required  to  give  a  certain 
notice  after  the  assessment  and.  before 
the  sale,  with  a  view  of  enabling  per- 
sons interested  to  come  in  and  object, 
the  sale  will  be  deemed  invalid  unless 
the  party  seeking  to   uphold  it  prove 
that  the  requisite  notice  was  given,  id 

23.  So,  where  it  is  required  that,  before 
soiling  lands,  the  corporation  collector 
sliall   make   affidavit  of  the  owner's 
inability  to  pay  the  tax  out  of  his  per- 
sonal estate  &c.,  and  no  proof  is  given 
that  such  affidavit  was  made.  id 

24.  If  the  charter  require  notice  to  be 
given   to  the   owner  of   lands   over 
which  a  street  is  to  be  laid,  and  that 
the  corporation  shall  endeavor  to  treat 
and  agree  with  him  for  a  reasonable 
compensation,  before  proceeding  to  an 
appraisement  of  his  damages  &c. ;  a 
notice  not  served  upon  the  owner  but 
put  up  on  the  lands  will  be  inopera- 
tive, though  it  appear  they  were  un- 
occupied, id 

25.  Nor  will  such  notice  be  deemed  val- 
id, even  should  it  appear  that  the  own- 
er could  not  be  found  after  diligent 
enquiry.    Per  BRONSON,  J.  id 

26  Until  notice  has  been  properly  given 
in  such  case,  the  corporation  have  no 
authority  for  calling  out  the  apprais- 
ers, id 

27.  An  appraisement  of  lands,  consisting 
of  village  lots  owned  by  different  per. 
sons,  will  be  deemed  irregular,  if  in- 
stead of  ascertaining  the  value  of  the 
lots  respectively,  the  appraisers  esti- 
mate the  whole  by  blocks;  especially 
where  the  value  of  the  lots  in  each 
block  varies.  id 

28.  The  case  of  Coles  v.  The   Trustees 
of  Williamsburgh,   (10  Wend.  659.) 
adverted  to  and  explained.  id 

29.  A  power  given  to  a  municipal  cor- 
poration to  sell  lands  for  taxes,  will 
not  authorize  a  sale  for  a  mere  assess- 
mentfor  benefit.  id 

30.  And  wen  if  it  be  provided  that  the 


assessment  shall  bo  "  a  lien  on  the 
land,"  quere,  whether  the  lien  can  bo 
enforced  without  the  aid  of  a  court  of 
equity.  id 

31.  A  city  ordinance  prohibiting  the  sale 
of  pressed  hay  -jDilhout  inspection,  and 
imposing  a  penalty  for  non-observance, 
contravenes  the  provisions  of  1  JR.  &. 
574,  §  5  et  seq.,  and  is  therefore  void. 
The  Mayor  fyc.  of  the  city  of  New. 
York  v,  Nieltok,  20<J 

See  BANKS  AND  BANKING  ASSOCIATIONS. 
BILLS  OF  EXCHANGE  AND  PROMISSO- 
nvNoTES,  17  to  21,  29. 
CONSTITUTIONAL  LAW,  G,  7,  12, 14. 
MORTGAGE  OF  LANDS,  4,  5. 
STATUTES,  3. 
TAXES  AND  ASSESSMENTS. 


COSTS. 

1.  Where  two  defendants  appeared  and 
pleaded  by  different  attorneys,  and  a 
motion  for  judgment  as  in  case  of  non- 
suit was  afterwards  made  by  each,  on 
separate   papers ;  held,  that  but  one 
bill  of  costs  should  be  allowed  on  grant- 
ing the  motion,  it  appearing  to  be  a 
case  in  which  the  defendants  must 
unite  in  the  application.     Trctcbridge 
$  Gray  v.  Sharp  $  Sharp,  3d 

2.  Under  the  act  of  1840,  (Scss.  L.  of 
'40,  p.  330,  §  3,)  an  attorney  fee  "  for 
attending  the  trial  of  a  cause"  is  tax- 
able, though  the  circuit  in  reference 
to  which  the  charge  was  made  was 
not  held,  by  reason  of  the  non-atten- 
dance of  the  judge  ;  but  otherwise  os 
to  a  counsel  fee.     Ittick  and  others  v. 
Whitney,  54 

3.  The  costs  of  a  pending  chancery  pro- 
ceeding cannot  bo  taxed  in  a  suit  at 
law.  id 

4.  The  statute  (2  R.  S.  617,  §  26)  giv- 
ing costs  to  a  defendant  where,  one 
or  more  of  several  issues  are  deter- 
mined in  his  favor,  and  the  others  in 
favor  of  the  piaintiff,  applies  only  to 
cases  in  which  a  verdict  is  actually 
rendered  for  the  defendant.     Brings 
v.  Allen  and  another,  53$ 

5.  Accordingly,   where  the  declaration 
in  an  action  for  libel  contained  five 
counts,  tho  third  relating  exclusively 
to  a  charge  of  inal-j»ractice  V  ^ 


INDEX. 


675 


plaintiff  as  n  physician  and  surgeon, 
and  moot  of  the  others  relating  to  the 
same  charge  in  connection  with  other 
libellous  matter,  to  the  whole  of  which 
the  defendant  pleaded  the  general  is- 
me,  accompanied  by  a  notice  of  jus- 
tification  as  to  the  charge  of  mal-prac- 
tice ;  and,  on  the  trial,  the  plaintiff 
expressly  waived  all  claim  for  dam. 
ages  on  account  of  such  charge,  no 
that  the  defendant  was  precluded  from 
giving  evidence  under  his  notice,  and 
the  plaintiff  obtained  a  general  verdict: 
Held,  that  inasmuch  as  no  separate 
verdict  was  rendered  for  the  defen- 
dant, he  was  not  entitled  to  the  costs 
of  the  issue  upon  the  third  count,  id 

L.  Independently  of  the  above  statute, 
the  only  consequence  of  a  discontinu- 
ance as  to  one  count  or  part  of  a  count, 
is  to  deprive  the  plaintiff  of  costs  upon 
the  matters  thus  discontinued.  Per 
NEJJON,  Ch.  J.  id 

7.  Where  proceedings  instituted  under 
the  third  section  of  the  non-imprison- 
ment act  (Sess.  L.  '31,  p.  396)  are 
dismissed,  the  costs,  fees  and  cxpen. 
scs  for  which  the  plaintiff  is  liable  to 
the  defendant  can  in  no  case  be  taxed 
at  a  sura  exceeding  ten  dollars.     Van 
Hovenburgh  v.  Case,  541 

8.  The  statute  regulating  the  fees  of  at- 
torneys applies  only  to  suits  in  courts 
of  record  ;  and  hence,  such  fees  are 
not  allowable  for  conducting  summary 
proceedings  before  particular  officers. 
Pen  NELSON,  Ch.  J.  id 

9.  Though  a  public  officer  against  whom 
a  judgment  has  been  obtained  for  an 
act  done  by  virtue  of  his  office  brings 
error  and  reverses  the  judgment,  he  is 
not  entitled  to  double  costs  upon  the 
writ  of  error.     Duckstader  v.  Sam. 
mans,  546 

10.  A  charge  for  drawing  and  copying  a 
bill  of  particulars  is  not  taxable  in  suits 
commenced  since  tho  act  of  Mav  14th, 
1640.     Barber  v.    T/ie   West  "Stock, 
bridge  Rail  Road  Co.  547 

11.  So  as  to  a  charge  for  a  copy  of  the 
pleadings  to  be  used  by  referees,  the 
cause  having  been  referred.  id 

12.  Where  a  writ  of  error  to  the  common 
pleas   was    brought   after  June    1st, 


1840,  though  the  judgment  soofht  to 
be  reversed  was  rendered  before,  kf'.d, 
that  the  costs  upon  the  writ  mu*l  be 
taxed  according  to  the  rates  establish- 
ed by  the  act  of  May  14th,  1840. 
Larmon  v.  Aikrn  and  another,  591 


13.  An  affidavit  of  the  travel  and 
dance  of  witnesses  H  defective  unless 
it  state  the  name   and   place  of  resi. 
dcncc  of  each  witness,   the  distance 
travelled  by  him  and  the  number  of 
days  that  he  actually  attended.   EkU 
T.  Bingham,  595 

14.  A  can-c  having  been  noticed  for. trial 
at  the  New- York  circuit,  was  placed 
upon  the  day  calendar,  where  it  re. 
mained  but  one  day;  held,  that  witnes- 
ses residing  in  the  city  were  entitled  to 
fees  for  one  day's  attendance  only,  id 

15.  Fees  paid  to  witnesses  who  do  not 
attend   in   obedience  to  a  subpwia, 
cannot  be  taxed  as  a  part  of  the  cost* 
in  the  cause  ;  the  remedy  of  the  par- 
ty  being  by  a  suit  to  recover  back  the 
money  paid.  id 

16.  That  part  of  the  act  of  1840  (Sess. 
L.  '40,  p.  327)  relating  to  the  fees  of 
counsellors,  attorneys  dec.,  docs  not 
apply  to  suits  commenced  before  the 
act  went  into  effect.    Per  Buoxsox,  J. 
Ex  parte  Becker,  613 

See  BANKRU rr  ACT,  3. 

EXECUTORS  AND  ADMINISTRATORS,  L 
NEW  TRIAL,  1. 

PRACTICE,  6,  7,  24  to  26,  35,  37. 
VKJTOE,  16. 


COUNSEL  FEES. 
See  COSTS,  2,  16. 

COURT  OF  ERRORS. 

How  far  the  decisions  of  the  court  for 
the  correction  of  errors  are  t  >  be  re. 
garded  a*  authoritative  expo*  tions  of 
the  law,  and  binding  r»<  r<:ch  upon 
other  court*  hi  similar  cases,  discms. 
ed  and  considered.  Per  BKAPIXH, 
president,  and  Horcnn,  ttnator. 
Hanfordv.Arteker,  271 


676 


INDEX. 


COURT   MARTIAL. 


.  fine  imposed  upon  a  commissioned 
officer  by  a,  regimental  or  battalion 
court  iiu:rlinl  cannot  be  collected  by 
an  action  of  debt  in  the  name  of  the 
people,  but  only  in  the  manner  point- 
ed out  by  1  it.  S.  315,  316,  §  13  et 
acq. — i.  c.  under  a  warrant  issued  by 
tbc  president  of  the  corrt.  The  Peo- 
ple v.  Hazard,  207 


COVENANT. 

1.  A  covenant  was  entered  into  between 
S.  a'nd  T.  of  the  one  part  and  B.  of  the 
other,  wherein  S.,  who  owned  certain 
lands,  agreed  to  sell  them  to  the  best 
advantage  he  could  obtain  for  them  in 
cash  between  the  date  of  the  covenant 
and  the  first  of  October   then  next, 
and  pay  the  proceeds  to  TB.  within  the 
lime  mentioned,  to  apply  on  a  mart- 
gage  executed  to   him  by  S. ;   after 
which   followed    this    clause — "Now 
therefore  we  agree  that  the  said  mo- 
neys so  received  as  aforesaid  shall  be 
paid  to  said  B.  &c.,  and  that  said  S. 
shall  use  all  necessary  care  and  dili- 
gence in  the  sale  of  said  lots"  HELD, 
an  undertaking  by  S.  and  T.  that, 
among  other  things,  S.  should  use  all 
necessary  care  and  diligence  to  make 
sales   within  the  time  specified,  and 
that  he  should  use  the  like  care  and 
diligence  to  sell  to  the  best  advantage 
or  for  the  best  price  which  could  be 
obtained    within    the    same    period. 
Brown  v.  Stebbins  «J-  Thurber,     154 

2.  Where,  in  an  action   on   such  cove- 
nant, one  of    the  breaches  assigned 
was,  that  "the  defendants  or  either  of 
them  did  not  pay  the  proceeds  of  the 
sale  to  the  plaintiff"  without  allegin] 
that  any  sale  had  been  made;   hel 
bad  on  special  demurrer.  id 

3.  So  of  a  breach  that  "S.  did  not  sett 
and  dispose  of  the  lands  to  the  best  ad. 
vantage  or  for  the  most  he  could  ob- 
tain," without  showing  whether  the 
plaintiff  meant  to  go  for  improperly 
omitting  to  sell  at  all,  or  for  selling 
at  too  low  a  price.  id 

4.  Otherwise,  of  a  breach  following  and 
negating  the  words  of  the  covenant ; 
*>.  g.  that  S.  did  not  use  all  necessary 
ct*re  and  diligence  in  the  sale  of  the 
lands.  id 


5.  As  a  general  rule,  it  is  sufficient,  in 
assigning  a  breach,  to  follow  and  neg- 
ative the  words  of  the  covenant,      id 

6.  An    exception  to   the    rule   obtains 
where  this  mode  of  pleading  docs  not 
necessarily  amount  to  a  breach.     Per 
BRONSON,  J.  id 

7.  When  the  pleader  undertakes  to  as- 
sign a  breach  coming  within  the  sub- 
stance, effect  or  intent  of  the  cove- 
nant, he  is  held  to  a  more  strict  rule 
than  when  he  follows  cither  negative- 
ly or  affirmatively,  as  the  case  may  be, 
the  words  of  the  contract.    Per  BRON- 
SON, J.  id 

8.  Where  a  declaration  in  covenant  as- 
signs several  distinct  breaches,  some 
of  which  are  good,  but   others  bad, 
and  the  defendant  interposes  a  demur- 
rer going  to  the  whole  declaration,  the 
plaintiff  will  be  entitled  to  judgment 
on  the  demurrer.  id 

9.  The  defendant,  under  such  circum- 
stances, should  plead  to  the  breaches 
which  are  well  assigned,  and  demur 
to  the  others.  id 

10.  A  covenant  for  quiet  enjoyment  runs 
with  the  land,  and  passes  by  a  quit- 
claim deed  to  a  purchaser  from  the 
grantee.     Per  WALWORTH,  chancellor. 
Hunt  v.  Amidon,  345 

11.  In  order  to  maintain  an  action  on  a 
a  covenant  of  warranty  or  for  p,uiet 
enjoyment  in  a  deed  of  lands,  a  law- 
fnl  eviction  in   some  form   must  be 
shown.     Greenvault  v.  Davis,       643 

12.  The  eviction,  however,  need  not  be 
by  process  of  law ;  but  it  is  enough 
that,  on  a  valid  claim  being  made  by 
a  third  person  under  title  paramount, 
the  plaintiff  voluntarily  yielded  up  the 
possession,  id.;    but  see   per    WAL- 
WORTH, chancellor,  contra,  in  Hunt  v. 
Amidon,  345. 

13.  Where  the  plaintiff  thus  surrenders 
possession  without  a  legal  contest,  he 
assumes  the  burden  of  proving  that 
the  person  entering   had    title   para- 
mount.    Greeavault  v.  Davis,       643 

14.  As  a  general  rule,  the  cons'deration 
clause  in  a  deed  of  lands  is  open  to 
explanation  by  parol  proof.  id 


15.  But  in  an  action  on  a  covenant  of 
warranty,  brought  by  one   to  whom 
the   grantee   in   tho   deed   had   con- 
voyed ;  held,  that  the  grantor  wan  not 
at  liberty  to  «ho\v  the  consideration 
paid  for  the  land  to  be  less  than  the 
sum  expressed  in  the  dn  >i.  id 

16.  Otherwise,  however,  had  the  action 
been  between  t!ic  immediate  parties 
to  the  deed.      Sembie,  per  NELSON, 
Ch.  J.,  and  COWE.N,  J. ;  BRONSON,  J. 
contra.  id 

See  ASSCMPSIT,  1 ,  4. 
DEED,  3  to  8. 
EVIDENCE,  8  to  11. 


CRIMINAL  LAW. 

1.  A  representation,  though  false,  is  not 
within  the  statute  against  obtaining 
property  otc.  by  false  pretences,  unless 
calculated  to  mislead  persons  of  ordi. 
nary   prudence   and   caution.       The 
People  \.  Williams,  9 

2.  Accordingly,  where  an  indictment 
charged  the  defendant  with  obtaining 
V.'s  signature  to  a  deed  of  land?,  by 
falsely  pretending  that  G.,  who  held 
a  bond  and  mortgage  apun-t  V.,  was 
about  to  sue  him  on  the  bond,  fore- 
close the  mortgage  &c.,  and  that  G. 
had  so  told  the  defendant :  Held,  that 
the  pretences  set  forth  were  not  suffi- 
cient to  warrant  a  conviction.          id 

3.  To  sustain  a  criminal  prosecution  for 
obtaining   the   signature  of  one  to  a 
mortgage  by  false  pretences,  the  mere 
fact  of  the   instrument  having  been 
signed  is  not  enough  ;  a  delivery  must 
also  be  shown.     Per  NELSON,  Ch.  J. 
Fenton  v.  The  People,  126 

4.  If  the  indictment,  in  such  case,  pur- 
sue  the  words  of  the  statute  by  charg- 
ing  that  the  defendant  unlawfully  &C. 
obtained  the  signature,  it  will  be  suf- 
ficient, though  it  do  not  aver  a  dp. 
livery  in  terms,  M 

5.  The  indictment  need  not  describe  the 
premises  covered  by  the  mortgage,  id 

6.  The  case  of  The  People  v.  Wright, 
(9  Wend.   193,)  commented  on  and 
explained.  *& 


INDEX.  677 

7.  In  an  indictment  outer  9  A.  5.  696, 
$3,  for  attemptmf  to  commit  an  of. 
fcaoe,  the  particular  manner  to  wUeh 
the  attempt  was  made  •  immaterial, 
and  need  not  be  alleged.  Tin 


8.  On  the  trial  of  an  indictment  i 
the  above  statute  for  an 
commit  anon,  it  was  shown  thai  the 
prisoner  solicited  one  K.  to  eat  fir*  to 
a  barn,  and  gave  him  uiatehab  far  the 
purpose  ;  held,  sufficient  to  warrant  a 
conviction,  though  the  prisoner  did 
not  mean  to  be  prevent  at  the  cummia. 
•ion  of  the  offence,  and  K.  never  in- 
tended to  conn:  id 


9.  Semble,  that  merely  roliciting  one  to 
commit  a  felony,  without  any  other 
act  being  doue,  is  sufficient  to  war. 
rant  a  conviction  under  the  statute,  id 

See  INJUNCTION,  5. 

NoN-IuraisoNMENT  ACT,  3. 


CURRENCY. 

Ste  BANKS  AND  BANKING  ASSOCIATION*. 
REDEMFTION  or  LAND*,  10,  II. 


CUSTOM. 

See  BAILMENT. 

EVIDENCE,  I  to  7. 


D 


DAMAGES. 

The  proper  measure  of  damage*  for 
the  broach  of  a  warranty  of  soundness 
on  the  sale  of  a  homo,  i»  the  difference 
between  the  value  of  the  bone  at  the 
time  of  the  sale,  considehnr  him  as 
sound,  and  his  value  with  the  defect 
complained  ot  Cerjr  r.  Gnus**, 


2.  Accordingly,  where  the  - 

reiected  evidence  of  what  would  h«»e 
bin  the  real  Tatoe  of  the  hf"  at  the 

time  of 


the  jury  that  the  proper^  «ae 
damage*  was  the  eifttenee 


678 


INDEX. 


the  price  paid  for  him,  and  his  value 
with  the  defect ;  he  Id  erroneous,  and 
the  judgment  was  therefore  reversed 

id 

3.  The  price  paid,  however,  is,  in  such 
case,   strong1  evidence   of  what   the 
horse  would  have  been  woilh  if  sound, 
and  should  always  control  unless  it  be 
clear  that  the  actual  value  was  either 
greater  or  less.     Per  COWEN,  J.       id 

4.  The   cape   of  Caswell  v.  Coare,   (1 
Taunt.  566,)  cited  and  explained,   id 

5.  If  a  horse  be  sold  with  warranty  of 
soundness,  though  he  turn  out  to  have 
been  unsound  at  the  time,  the  vendee 
has  no  right  to  return  him  and  recover 
back  the  price  paid,  unless  there  be 
either  an  agreement  to  that  effect  or 
fraud  on  the  part  of  the  vendor.     Per 
COWEN,  J.  id 

See  BOND,  1,  2. 

COMMON  SCHOOLS,  5. 
COVENANT,  14  to  16. 
EVIDENCE,  9,  10. 
USURY,  15. 


DEBTOR  AND  CRED[TOR. 

See  BANKRUPT  ACT. 

BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  26,  27. 

DEBTORS,  ABSCONDING,  CONCEALED 
AND  NON-RESIDENT. 

FRAUDULENT  SALE  OF  CHATTELS. 

NON-IMPRISONMENT  ACT. 

PRINCIPAL  AND  SURETY,  6  to  13. 


DEBTORS,  ABSCONDING,  CON- 
CEALED AND  NON-RESIDENT. 

1.  Where  one  against  whom  process  has 
been  instituted  as  an  absconding  or 
concealed  debtor,  brings  a  certiorari 
pursuant  to  2  R.  8.  620,  §  6T1,  and 
accompanies  the  same  by  a  bond  in 
the  form  prescribed  by  §  74,  he  must, 
within  ten  days  after  the  filing  of  the 
certiorari,  give  notice  of  the  names, 
additions  &c.  of  the  sureties  in  the 
bond ;  and   the   creditors  have  'then 
twenty  days  witlu'n  which  to  except 
to  the  sureties.  Matter  of  Faulkner,  an 
absconding  or  concealed  debtor,       30 

2.  If  euch  notice  be  not  given,  or  if  the 
sureties  fail  to  justify  en  being  ezccpt- 


cd  to  and  new  sureties  be  not  substi- 
tuted, the  certiorari  will  cease  to  ope- 
rate as  a  stay,  and  the  creditors  may 
proceed  to  the  appointment  of  trustees 
as  if  no  certiorari  had  been  brought. 

id 

3.  An  ex  parle  justification  by  the  sure- 
ties at  the  time  of  giving  the   bond, 
cannot  be  made  to  answer  as  a  sub- 
stitute for  the  above   steps  on  the  part 
of  the  debtor.     Semble.  id 

4.  If  the  debtor,  after  filing  the  bond, 
omit  the  steps  necessary  to  perfect  it, 
the  certiorari   ceases  to  operate  as  a 
etay  of  proceedings  without  obtaining 
a  svpersedeas.  ia, 

5.  The  trustees  of  the  estate  of  an  ab. 
sconding,  concealed   or  non-resident 
debtor,    may     maintain     an    action 
against  the   sheriff  for   suffering   the 
goods    attached    by    him  to  be   lost 
through  his  negligence.    Acker,  sher- 
iff $c.  v.  Witherell  and  others,      112 

6.  Where,  in  such  action,  the  declara- 
tion   commenced   by   describing  the 
plaintiffs  as  "  trustees  for  all  creditors 
of  the  estate,  real  and  personal  of  M., 
iate  of  &c.,  an  absconding  or  conceal- 
ed debtor,"  and  then  set  forth  the  pro- 
ceedings against  M.  down  to  and  in- 
cluding the  seizure  of  the  property  by 
the  sheriff  in  virtue  of  the  warrant, 
but  contained  no  direct  averment  that 
the  plaintiffs  had  been  appointed  trus- 
tees in  consequence  of  such  proceed- 
ings ;  held,  nevertheless,  that  the  dec- 
laration was  sufficient  in  this  respect 
on  error,  no   special  demurrer  having 
been  interposed.  ta 


7.  The  appointment  of  trustees  in  a  pro- 
ceeding   against   an    absconding    or 
concealed  debtor,  under  2  R.  S.  p.  2 
et  seq.,  does  not  preclude  him    from 
raising  the  question  whether  the  affi- 
davits upon  which  the  attachment  is- 

.  sued  were  sufficient  to  give  the  officer 
jurisdiction.  Matter  of  Faulkner,  an 
absconding  or  concealed  debtor,  598 

8.  Not  will  the  debtor  be  precluded  even 
though  he  have  previously  applied  for 
and   had  a  hearing  in  the  common 
pleas,  pursuant  to  2  R.  S.  p.  9,  §  43. 

id 

9.  The  case  of  Hubbell  v.  Ames  (15 


INDEX. 


Wend,  372)   explained,  and  the  re- 
porter's abstract  of  it  corrected.         id 

10.  In  order  to  confer  jurisdiction,  the 
affidavits  of 'the  two  witnesses  requir. 
ed  by  2  R.  8.  p.  3,  $  5  must  state  the 
facts  and  circumstances  to  establish 
the  grounds  of  the  application  ;  mere 
information  and  belief  will   not  an. 
«wcr.     Per  BRO.NSO.N,  J.  id 

11.  If,  however,  facts  and  circumstances 
be   stated    tending    to  establish  the 
grounds  of  the  application  and  fairly 
calling  on  the  officer  for  an  exercise 
of  his  judgment  upon  the  weight  of 
the  evidence,   though   he  err  in  his 
estimate  of  it,  the  proceeding  will  not 
be  void  for  lack  of  jurisdiction.          id 

See  COMMISSION  TO  TAKE  TESTIMONY. 
•  LANDLORD  AND  TENANT,  4. 


DECLARATION. 

Ste  COVENANT,  2  to  9. 
DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON.RESIDENT,  6. 
EXECUTORS  AND  ADMINISTRATORS^. 
OFFICE  AND  OFFICER,  8,  9. 
PLEADING. 
REPLEVIN,  2. 
ROADS  AND  HIGHWAYS,  3,  4. 


DECREE  IN  BANKRUPTCY. 
See  BANKRUPT  ACT. 

DECREE  IN  CHANCERY. 

See  ASSOMPSIT,  1 ,  2. 
DEED,  1,  2. 
EVIDENCE,  8  to  11. 
JUDGMENTS  AND  EXECUTIONS,  12. 
MORTGAGE  OF  LANDS. 
PRINCIPAL  AND  SURETY.  1  to  5. 

DEED. 

1.  A  deed  executed  by  a  master  under  a 
decree  of  foreclosure  in  chancery, 
passes  the  title  to  the  purchaser  at  the 
moment  of  delivery,  though  the  report 
of  sale  be  not  made  and  confirmed  on- 
til  sometime  afterward.  Fuller  v. 
Van  Gee  sen,  171 


2.  Even  if  it  wwe  othfltwiw,  UM  i 
quent  onnnrmatinn  of  the  sale  would 
relate  back  to  the  delivery  of  &•  deed, 
and  thus  give  it  effect  from  thai  tim* 
as  against  an  intruder  into  the  premi- 
se*. Per  COWKN,  J.  i  J 


3.  A  sealed  instrument,  when 

by  one  acting  as  attorney,  most  be  ex- 
ecuted in  the  name  of  the  principal, 
and  purport  to  be  scaled  with  his  seal. 
Tuirnttnd  and  other*  v.  Hubbard  mud 
Orcutt,  351 

4.  Accordingly,  where  a  covenant  for 
the  sale  and  purchase  of  land*  was 
subscribed  only   with  the  names  of 
B.,  H.  and  O.,  and  commenced  thus: 
"  Articles,  &c.  made  &c.  between  T. 
&c.  by  B.  their  attorney,  of  the  first 
part,  and  H.  and  O.  of  the  second 
part,  witnesseth ;"  and  the  concluding 
clause  was  thus :  "  In  witness  where, 
of  the  said  B.,  at  attorney  of  the  par. 
ties  of  the  first  part,  and  the  said  par- 
ties of  the  second  part,  have  hereunto 
set  their  hands  and  seals,"  Sue. :  Held, 
that  the  covenant  did  not  purport  to 
have  been  executed  by  T.  Ate.,  and 
that  they  could  not  maintain  an  ac- 
tion upon  it  id 

5.  The  case  of  Magill  T.  Hintdale,  (6 
Conn.  Rep.  464,)  commented  OB  and 
disapproved.    Per  WALWORTH,  chart- 
cellar.  id 

6.  Less  strictness  is  required  where  the 
instrument  is  not  under  seal ;  it  being 
sufficient,  in  such  case,  if  the  intent  to 
bind  the  principal  appear  in  any  part 
of  the  instrument.     Per  WALWORTH. 
chancellor.  id 


7.  No  particular  form  of  words  is  i 
sary  to  be  observed  by  the  attorney, 
even  in  executing  a  sealed  instrument, 
provided  the  words  used  import  the 
requisite  facts.   Per  WALWORTH,  ckan. 
re/W.  id 

8.  Though  a  deed  be  executed  by  an  »t. 
torney  for  several  principal*,  it  is  not 
necessary  to  affix  a  separate  seal  for 
each,  provided  it  appear  that  the  veil 
affixed  was  intended  to  be  adopted  H 
the  seal  of  all.    SembU;  per  WAL- 
WORTH, ehametlltr.  id 


See  ADVKRRB  P 

AMUMnrr. 


INDEX. 


See  CORPORATION,  7  to  30. 
COVENANT. 

EVIDENCE,  8  to  11,  19,  20. 
REDEMPTION  OF  LANDS. 
ICivERS  AND  CREEKS. 


DEFAULT. 

Sec  PRACTICE,  18  to  22. 

DEFEASANCE. 

Ste  EVIDENCE,  19  20 

JUDGMENTS  AND  EXECUTIONS,  10. 

.DELEGATION  OF  POWER, 

Sf(    XtiTARV. 

DELIVERY  OF  CHATTELS. 

See  FRAUDULENT  SALE  OF  CHATTELS. 

DEMAND  OF  PAYMENT. 

See  BILLS  OF  EXCHANGE  AND  PROMISSO- 
RY NOTES,  5,  21. 
EVIDENCE,  12,  13. 

DEMURRER. 

See  COVENANT,  2  to  4,  8,  9. 
PRACTICE,  21,  22. 

DEPOSITION. 

See  CHANCERY. 

WITNESS,  5,  6.  + 

DESCENT. 
See  WILL. 

DEVISE. 

Sec  EXECUTORS  AND  ADMINISTRATORS,  4 
WILL. 


DISCHARGE. 


See  BANKRUPT  ACT. 

NON-IMPRISONMENT  ACT. 


DISCONTINUANCE. 

See  BANKRUPT  ACT,  3. 
COSTS,  4,  5. 
PRACTICE,  24,  to  26. 


DISCOVERY. 

See  CHANCERY,  1. 
CORPORATION,  3. 


DISCRETION. 

See  BILL  OF  EXCEPTIONS. 
MANDAMUS. 
NEW  TRIAL,  5,  7. 
PRACTICE  AT  THE  TRIAL,  1,  4  to  7. 
USURY,  19. 


DISTRESS  FOR  RENT. 
See  LANDLORD  AND  TENANT,  1  to  4 

DOCKET  OF  JUDGMENT 

See  JUDGMENTS  AND   EXECUTIONS,  12, 
17  to  19. 

DOOR. 

See  JUDGMENTS  AND  EXECUTIONS,  4  to  9 

DOUBLE  COSTS. 
See  COSTS,  9. 

DRAFT. 

See  BANKS  AND  BANKING  ASSOCIATIONS. 
BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES. 
CONTRACT.  2,  3. 
USURY.  3. 


INDEX. 


681 


DRAWER  AND  DRAWEE. 

See  BILLS  OF  EXCHANGE  AND  PROMIS- 
SORT  NOTES,  7  to  12,  17  to  21,  29. 


"  DUE  PROCESS  OF  LAW." 
See  CONSTITUTIONAL  LAW,  4. 

DWELLING-HOUSE. 

See  JUDGMENTS  AND  EXECUTIONS,  4  to  9, 


E 


EJECTMENT. 

1 .  In  ejectment,  if  possession  by  the  de- 
fendant at  the  time  of  the  commence- 
ment of  the  suit  be  shown,  the  pre- 
sumption will  be,  in  the  absence  of 
evidence  to  the  contrary,  that  lie  en- 
tered  and  held    in  hostility  to  the 
plaintiff,  and  not  in  subordination  to 
his  right     Sharp  and  others  v.  In 
graham,  116 

2.  Accordingly,   in  order  to  put  the 
plaintiff  to  proof  of  an  ouster,  in  such 
case,  the  defendant  must  show  affirm- 
atively that  either  he,  or  one  under 
whom  he  claims,  is  a  joint-tenant  or 
tenant  in  common  with  the  plaintiff. 

id 

3.  The  rule   is  tho  same,  though   the 
plaintiff  claim  only  an  undivided  in- 
terest  in  the  premises  in  question,     id 

4.  Where  the  plaintiff  showed  title  to 
an  undivided  interest  in  a  lot  of  land, 
and   it  appeared   that  the  defendant 
entered  into  possession  under  one  C., 
who  for  several  years  had   exercised 
acts  of  ownership  over  the  lot  by  leas- 
ing the   same,  but  no  evidence  was 
given  of  any  privity  of  estate  or  title 
between  C.  and  the   plaintiff;    htld, 
that  the  latter  was  entitled  to  recover, 
without  proving  an  ouster  id 

5.  In  ejectment,  mere   evidence  of  a 
former  recovery  against  the  plaintiff's 
tenant,  and  of"  the  defendant's  entry 
under  it  shortly  previous  to  the  com- 
mencement of  the  present  action,  will 

VOL.  IV. 


not  rebut  the  presumption  of  title  ark. 
ing  from  a  prior  uninterrupted  pos- 
session by  the  plaintiff,  unless  it  ap- 
pear that  he  had  knowledge  of  the 
proceedings  against  the  tenant  and 
an  opportunity  to  defend.  Semblc. 
Wheeler  v.  Ryersa  and  others,  466 

6.  Where  the  defendant  insisted  at  the 
trial  that  such  former  recovery  was 
conclusive  so  as  absolutely  to  bar  the 
plaintiff,  and  the  circuit  judge  ruled 
the  contrary  ;  held  that,  under  a  gen. 
eral  exception  to  the  decision,  the  de- 
fendant could  not  raise  the  question 
whether  the  evidence  was  sufficient 
to  overcome  the  presumption  arisir 


7.  The  case  of  Whitney  v.  Wright,  (15 
Wind.  171,)  commented  on,  and  the 
reporter's  abstract  of  it  corrected.  Per 
VYALWORTH,  chancellor.  id 

See  ADVERSE  POSSESSION. 

CORPORATION,  9  to  14,  17  to  19. 
MORTGAGE  OF  LANDS,  2  to  5. 


ENDORSER  AND  ENDORSEE. 

See  BANKS  AND  BANKING  ASSOCIATIONS, 
1,2. 

BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  5  to  9,  13  to  15, 
17,  20  to  25,  27,  28,  30. 

PARTNERSHIP. 


ENTITLING  OF  PAPERS. 
See  PmAcnci,  1,  2,  40. 

EQUITABLE  CONVERSION. 

See  WILL,  3  to  8. 

EQUITY. 

See  ADVERSE  POSSESSION. 
ASSUMPSIT,  1 , 2. 
CORPORATION,  30. 
DEED,  1, 2. 
EVIDENCE,  8  to  11. 
INJUNCTION. 

LIMITATIONS,  STATUTE  op. 
MORTGAGE  or  LANDS. 
PAYMENT. 

86 


682  INDEX. 


See  PRINCIPAL  AND  SURETY,  1  to  5. 
USURY,  13,  14. 
WILL,  3  to  8. 


ERROR. 

1.  In  general,  objections  not  made   at 
the  trial  cannot  be  urged  on  a  writ  of 
error.      Per   WALWORTH,  chancellor, 
and  HOPKINS,  senator.     Hartford  v. 
Artcher,  271 

2.  Quere,  if  this  be  so  as  to  objections 
which  could  not  have  been  obviated 
at  the  trial,  had   they   been   raised. 
Per  WALWORTH,  chancellor,  id 

3.  A  judgment  will  not  be  reversed  on 
error,  merely  because  the  judge  who 
pronounced  it  gave  an  erroneous  or 
insufficient  reason  therefor.  Per  WAL- 
WORTH, chancellor.  id 

See  COSTS,  9,  12. 

DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  1  to  4. 
FRAUDULENT  SALE  OF  CHATTELS,  1 

to  4. 
PRACTICE,  4,  5. 


ESTOPPEL  BY  DEED. 
See  COVENANT,  14  to  16. 


ESTOPPEL  BY  JUDICIAL  PRO- 
CEEDINGS. 

See  DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  11. 
EJECTMENT,  5  to  7. 
EVIDENCE,  8  to  11. 
MORTGAGE  OF  LANDS,  1  to  3. 

NON-IMPRISONMENT  A.CT,  4. 


EVICTION. 

See  ASSUMPSIT,  1,  2. 
COVENANT,  11  to  13. 


EVIDENCE. 

1.  A  written  instrument  acknowledging 
the  receipt  of  a  quantity  of  wheat  "  in 
store,"  imports  a  bailment  and  not  a 
tale.  Goodyear  v.  Ogden  £  Pearl, 

104 


2.  Such  instrument  is  in  the  nature  of  a 
contract,  and  therefore  not  open  to 
contradiction  in  the  sense  of  the  rule 
applicable  to  receipts  proper ;  though 
its  import  may  be  explained  by  parol 
evidence  of  the  usage  among  dealers 
in  wheat.     Per  COWEN,  J.  id 

3.  Where  parol  evidence  is  given  of  a 
usage  to  treat  such  instruments  as  im- 
porting a  sale,  it  is  for  the  jury  to  say 
whether  the  usage  be  so  universal  and 
well  known  as  to  raise  the  presump- 
tion that  it  entered  into  and  formed  a 
part  of  the  contract  in  question.        id 

4.  A  memorandum  acknowledging  the 
receipt  of  a  quantity  of  grain  "  on 
freight,"  imports  a  bailment  and  not 
a  sale.    Dawson  v.  Kittle,  107 

5.  But  the  memorandum  may  be  shown 
to  mean  a  sale  by  evidence  of  usage 
among  dealers  in  grain.    Per  NEL- 
SON, Ch.  J.  id 

6.  Such  evidence,  however,  must  be  so 
full  and  explicit  as  to  leave  no  doubt 
of  the  existence,  extent  and  meaning 
of  the  usage,  and  that  the  parties  con- 
tracted in  reference  to  it.     Per  NEL- 
SON,  Ch.  J.  id 

7.  In  general,  where  evidence  of  usage 
is  given  to  control  the  construction  of 
a  written  instrument,  the  jury  are  to 
determine  its  effect.  id 

8.  If  a  person  covenant  for  the  results  or 
consequences  of  a  suit  between  others, 
the  decree  of  judgment  in  such  suit 
will  be  evidence  against  him,  though 
he  was  not  a  party.    Rapelye  $•  Pur- 
dy  v.  Prince  $•  Prince,  119 

9.  Accordingly,  where  one  assigned  a 
mortgage,  covenanting  that  it  should 
produce  and  yield  a  given  sum  over 
and  above  the  costs  of  foreclosing,  and 
that  if  it  did  not,  he  would  pay  the  de- 
ficiency :  held,  that  the  assignee  hav- 
ing subsequently  foreclosed  the  mort- 
gage in  chancery  and  sold  under  the 
decree,  without  making  the  assignor  a 
part}',  these  proceedings  were  evidence 
against  the  latter,  in  an  action  on  the 
covenant,  to  show  the  amount  of  the 
deficiency.  id 

10.  Held  further,  that  the  assignor  was 
estopped  by  the  decree  from  question. 


INDEX. 


683 


ing  the  amount  found  doe  upon  the 
mortgage,  no  fraud  being  alleged,   id 

11.  The  case  of  Douglata  v.  Rowland, 
(24  Wend.  35,)  commented  on  and 
explained.  *^ 

12.  The  memorandum  of  a   deceased 
teller  of  a  bank  made  in  the  usual 
course  of  his  employment,  is  compe- 
tent evidence   in  proving  a  demand 
by  him  on  the   maker  of  a  note,  and 
notice   to   the    endorsers;    and   this, 
whether  he  attended  to  the  business 
on  the  retainer  of  a  notary,  or  as  part 
of  his  duty  to  the  bank.     Sheldon, 
ex*r  $c.  v.  Benham,  imp'd  <J-c.,     129 

13.  Where  the  memorandum  is  abbre- 
viated or  eliptical  so  as  not  to  be  intel- 
ligible without  explanation,  an  expert 
may  be  called  to  prove  what  the  words 
mean.  ** 

14.  So  where  an  instrument  is  written 
jn  a   foreign  language,  a  translator 
may  be  called.  *& 

15.  If  the   difficulty  arise  from  the  ob- 
scurity of  the  writing  itself,  one  skilled 
in  deciphering  may  be  called.    Sem- 
ble ;  note  (b.) 

16.  Where  the  dispute  is  simply  upon 
what  the  words  of  an  instrument  re- 
ally are,  the  question  is  not   for  the 
court,  but  belongs  to  the  jury.    Sem. 
ble ;  see  note  (b.)  id 

17.  In  an  action  on  a  written  promise  to 
pay  and  discharge  certain  notes,  de- 
scribing them  by  their  dates,  amounts 
&.c.  and  aa  having  been  given  by  one 
F.  to  the  plaintiffs  ;  held,  that  the  pos. 
session  and  production  of  the  promist 
by  the  plaintiffs  was  presumptive  evi 
dencc  of  its  having   been   made  t( 
them,  though  no  promisee  was  nainct 
in  it.     F'irinan  and  Eta  us  v.  Stebbin* 
and  Bush,  18 


18.  Held  further,  that  as  the  notes 
produced  by  the  plaintiffs  on  the  tria 
corresponded  with  those  described  in 
the  promise,  their  identity  should  b 
presumed,  in  the  absence  of  evidence 
to  the  contrary,  and  that  the  plaintiffs 
need  not  even  prove  their  execution. 

M 


19.  Evidence  of  a  parol  agreement  is  in 
general  inadmissible  to  qualify  a  seal, 
ed  instrument,  or  to  show  a  defeasance 
different  from  that  which  the  instru- 
ment itself  expresses.    P*r  Co  WEN,  J. 
Nelxmv.  Sharp,  584 

20.  The  practice  in  this  state  of  receiv. 
ing  parol  evidence  that  an  absolute 
deed   was  intended   as  a  mortgage, 
ought  not  to  be  extended.    Per  Cow- 
EN,  J.  »<* 

See  ASSUMPSIT,  4. 

BILL  OF  EXCEPTIONS,  3. 
BILLS  or  EXCHANGE  AND  PROMIS- 
SORY NOTES,  13,  25,  28,  29. 
BOND,  4,  5. 
CHANCERY. 

COMMISSION  TO  TAKE  TESTIMONY. 
COMMON  SCHOOLS,  5. 
CONSTITUTIONAL  LAW,  8,  11. 
CORPORATION,  9  to  14,  17  to  19, 

22,  23. 

COVENANT,  13  to  16. 
DAMAGES,  2,  3. 

DEBTORS,  ABSCONDING,  CONCEALED 
AND  NON-RESIDENT,  10,  11. 

EJECTMENT. 

FRAUDULENT  SALK  OF  CHATTEL*. 

GUARANTY. 

INFANCY. 

INSURANCE,  7  to  11. 

JUDGMENTS  AND  EXECUTION!,  1 1. 

LANDLORD  AND  TENANT,  3. 

LIEN,  4  to  6. 

MORTGAGE  OF  LANDS. 

NEW  TRIAL,  1,  G. 

OFFICE  AND  OFFICER,  7. 

PRACTICE  AT  THE  TRIAL.  2  ta  7. 

PRINCIPAL  AND  SURETY,  1  to  5. 

REDEMPTION  OF  LANDS,  6  to  9. 

TROVKR. 

WITNESS. 


EVIDENCE  IN  REPLY. 
See  PRACTICE  AT  THE  TRIAL,  4  to  7. 

EXAMINATION  OF  PLAINTIFF. 
See  USURY,  1,2,  17  to  19. 


EXAMINATION   OF   WIT- 
NESSES. 

See  CHANCERY,  2  lo  7,  9. 

COMMISSION  TO  TAXI  TESTIMONY. 


684 


INDEX. 


See  FRAUDULENT  SALE  OP  CHATTELS, 


EXAMINER  IN  CHANCERY. 

See  CHANCERY,  2  to  7. 
WITNESS,  4. 


EXCEPTING  TO  SURETIES. 

See  DEBTORS,  ABSCONDING,  CONCEALED 
AND  NON-RESIDENT,  1,  2,  4. 


EXECUTION. 

See  JUDGMENTS  AND  EXECUTIONS,  1  to 

9,  12  to  19. 

LANDLORD  AND  TENANT,  5,  6. 
MORTGAGE  OF  CHATTELS. 


EXECUTORS  AND  ADMINIS- 
TRATORS. 

1.  An  executor  or  administrator  who  fails 
in  an  action  necessarily  brought  in  his 
representative  capacity,  is  not  liable  to 
pay  costs  except  in  the  cases  specified 
in  2  R.  S.  615,    §  17.     Patchen   $ 
Patchen,  adm'rs  fyc.  v.  Wilson,      57 

2.  Goods  and  chattels,  on  the  death  of 
the  owner,  vest  in  his  personal  repre- 
sentative ;  and  if  they  be  afterwards 
tortiously  taken  or  wrongfully  convert- 
ed, he  may  sue  for  them  in  his  own 
name  without  describing  himself  as 
executor  or  administrator.  id 

3.  Otherwise,  where  the  executor  or  admin  - 
istrator  sues  on  a  contract  made  with 
the  testator  or  intestate.   In  such  case, 
unless  the  contract  be  a  promissorynote 
payable  to  bearer,  the  action  must  be 
prosecuted    by  the   representative  as 
such ;  and  this,  though  the  time  for 
payment  or  performance  had  not  ar- 
rived   when   the  testator  or  intestate 
died. 


4.  D.,  by  his  will,  gave  the  rents  anc 
profits  of  two-thirds  of  his  real  estate 
to  his  daughters  for  life,  the  fee  to 
their  issue ;  and  the  fee  of  the  other 
third  to  his  grandsons,  to  take  at  twen. 
ty-one,  with  the  benefit  of  the  indome 
by  way  of  maintenance  during  their 


minority.  The  will  then  provided  as 
follows:  "For  the  more  easy  and 
equal  division  of  my  estate,  I  do  here- 
by fully  authorize  and  empower  my 
executors  hereinafter  named,  when- 
ever  they  shall  think  it  expedient,  to 
sell  and  dispose  of  all  or  any  part  of 
my  real  estate  for  the  most  moneys 
that  can  be  gotten  forthe  same"  &c.  In 
pursuance  of  this  authority,  the  two 
acting  executors  sold  certain  lots  of 
land,  parcel  of  D.'s  estate,  and  took 
back  a  bond  and  mortgage  in  their 
joint  names  as  executors  for  a  portion 
of  the  purchase  money.  Afterwards, 
and  prior  to  the  fund  being  wanted  for 
distribution,  one  of  the  executors  sold 
and  assigned  the  bond  and  mortgage 
to  B.,  misapplied  the  proceeds  and 
failed.  Held,  that  though  the  other  ex- 
ecutor did  not  unite  in  or  assent  to  tho 
assignment,  B.  acquired  a  valid  title  to 
to  the  bond  and  mortgage,  he  having 
purchased  in  good  faith.  Bogerl,  ap- 
pellant, v.  Hcricll  and  others,  respon- 
dents, 492 

5.  In  general,  one  of  two  or  more  exec- 
utors may  make  a  valid  sale   of  the 
personal  assets  of  the  estate,  without 
the  others  uniting  in  the  act  of  trans- 
fer.    Per  NELSON,  Ch.  J.  id 

6.  This  rule  applies  as  well  to  notes  and 
other  securities  given  to  executors  as 
such,  after  the  death  of  their  testator, 
as  to  those  given  to  him  in  his  life 
time,   provided   the  money,  when  re- 
covered, would  bo  assets.    Per  NEL- 
SON, Ch.  J.,  and  BOCKEE,  senator,    id 


7.  The  case  of  Smith  v.    Whiting,   (D 
Mass.  Rep.  334,)  commented  on  and 
overruled.  id 

8.  Suits  at  law  may  be  maintained  by 
executors  or  administrators  as  such, 
on  promissory  notes  &c.  made  ti>  them 
in  their  representative  capacity,  where 
the  fund  sought  to  be  recovered  will 
be  assets ;  and  counts  on  such  notes 
may,  it  seewt-f,  be  joined  with   counts 
on  promises  to  the  testator  or  intestate. 
Per  NELSON,  Ch.  J.  id 

See  WILL,  6,  8. 


EXHIBIT. 

See  CHANCERY,  2  to  7. 


CSS 


EXPERT. 
Bee  EVIDENCE,  13  to  16. 


FALSE  PRETENCES. 
See  CRIMINAL  LAW,  1  to  6. 

FEES. 
See  Com. 

FIERI  FACIAS. 

See  ATTACHMENT. 

JUDGMENTS  AND  EXECUTIONS,  1  to  9, 

13  to  15,  17  to  ID. 
LANDLORD  AND  TENANT,  5,  6. 
MORTGAGE  OF  CHATTELS. 

FINE. 

See  COURT  MARTIAL. 

FORECLOSURE. 

See  ASSUMPSIT,  1,  2. 
DEED,  1,  "2. 
EVIDENCE,  8  to  11. 
MORTGAGE  OF  LANDS. 

FOREIGN  CORPORATION. 
See  CORPORATION,  I  to  3. 

FORMER  RECOVERY. 

See  EJECTMENT,  5  to  7. 

FOURTH  OF  JULY. 

See  BILLS  or  EXCHANGE  AND  PROMTS- 
SOB  v  NOTES,  5. 


FRAUD. 

See  CRIMINAL  LAW. 

FRAUDCDENT  SALE  or  Car 
LIEN,  2,  3. 


FRAUDS,  STATUTE  OF. 

1 .  The  statute  of  frauds  relating  to  prom, 
ises  to  answer  for  the  dibt,  default  or 
miscarriage  of  another,  (2  R.  >•   \3J, 
$  2,  tubd.  2,)  applies  only  ». 
promisor  stands  in  the  relation  of  a 
surety  for  some  third  person  who  • 
the  principal  debtor,     Per  B*OM>O\. 
J.    Joknton  v.  Gilbert,  178 

2.  Accordingly,  in  on  action  on  a  writ, 
ten  promise  to  guaranty  the  payment 
of  a  cliatu-1   note,  it   appearing   that 
the  dt-lVndant  transferred  the  uot«  to 
the-  j/amtiff  and    made  I  he  guaranty 
in  considered. .:i    c.i  motiovs  piA  by 
the  plaintiff  tor  the  diKiniiii.t  at  hi* 
request ;  held,  tha;  the  protu*M   was 
valid,  though  it  expressed  ao  coosid- 
oration.  (J 

See  BILLS  or  EXCHANGE  AND   PROMIS- 

EORY  NOTES  I'.'. 
GUARANTY. 


FRAUDULENT  CONVEYANCE 
OF  LANDd. 

Sfe  DILLS  or  Excir.iM.r  AND  Ptotto- 
SOKY  NOTES,  M,  '21. 


FRAUDULENT  >ALE  OF  CHAT- 

Tl  I 

1.  The  qnertion  bci-i  ^  whrthrr  thr  plain, 
tiff's  title  to  goods  in  (Up 
he  claiiiu >l   !  .    .:!;••  of  an  absolnto 
Fair,    \wis   I. 

vendor  .        .v.  J3G, 

§  5,  it   a;  ;.<  ariM^  t'i:it   no  chango  of 
posBCtniuii  !r 

judge  told  the  jun  .t'  any 

good  reason  had    I  ten  tHotcn. 

they    COUtlt    t' ;,]'!»:  (•Oft*. 

tiou    had    it. 
\vljcrcuj)on  a 

favor  (•>  ft      .  Uwt 

tlic  t-iiargu  wai  irroiituus  an  lii.u>ng 

mi  L»i«- true  posal 

of  enquiry,  vi/.  tl»o  UIM  fed**  ol   UM 
transaction  ;  and  ill.*,  thon^h  UM  dr. 


686 


cuit  judge,  in  a  previous  part  of  his 
charge,  had  read  the  statute  to  the 
jury,  telling  them  that  the  question  of 
fraudulent  intent  was  one  of  fact  for 
their  decision.  Hanford  v.  Artcher, 

271 

2.  WAIWORTH,   chancellor,   dissented, 
holding  that  the  party  claiming  under 
an  absolute  sale  must,  in  addition  to 
other  proof  of  the  bona  fides  of  the 
transaction,  furnish  a  satisfactory  ex- 
cuse  to  the  court   and  jury  for  the 
want  of  a  change  of  possession  ;  and 
that  the  charge  in  this  respect  was 
therefore  proper.  id 

3.  The  circuit  judge  should  have  told 
the  jury  to  enquire  whether  it  had 
been  shown  on  the  part  of  the  plain- 
tiff', that  the  sale  was  made  in  good 
faith,  and  without  any  intent  to  de- 
fraud  creditors  or  subsequent  pur- 
chasers.   Per  BRADISH,  president,  id 

4.  WAI.WORTH,  chancellor,  was  of  opin- 
ion that,  upon  the  whole  charge  ta- 
ken together,  the  question  of  fraud  or 
no  fraud  was  fairly  submitted  to  the 
jury.  id 

5.  The  statute  has  not  undertaken  to 
define  what  shall  be  sufficient  to  prove 
good  faith  or  an  absence  of  intent  to 
defraud ;    but  has  left  this  to  be  de- 
termined by  the  jury,  under  the  di- 
rection of  the  court,  from  such  com- 
petent and  relevant  testimony  as  is 
presented  to  them  according  to  the 
ordinary  and  established  rules  of  evi- 
dence.   Per  BRADISH,  president,     id 

6.  The  power  of  the  court  to  decide  as 
to  the  competency  and  relevancy  of 
the  evidence  offered  in  such  case,  has 
not  been  impaired  by  the  statute.    Per 
BRADISH,  president.  id 

7.  The  court,  however,  must  decide  in 
view  of  the  proper  issue ;  i.  e.  with  ref- 
erence to  the  tendency  of  the  evidence 
to  show  good  faith  and  an  absence  of 
fraudulent  intent,  and  not  with  refer- 
ence to  the  mere  question  whether  de- 
livery was  practicable.     Per  HOPKINS, 
senator;  BRADISH,  president,  concur- 
ring, id 

8.  Proof  of  a  valuable  considerationw  an 
honest  debt  is  essential  to  show  good 
faith;  and  if  such  proof  be  not  given, 


the  court  may  refuse  to  put  the  case  to 
the  jury,  or  may  set  aside  the  verdict 
where  one  has  been  given  affirming 
the  validity  of  the  transaction.  Per 
HOPKINS,  senator.  id 

9.  The  proof  of  consideration  must  go 
beyond  a  mere  paper  acknowledgment 
of  it,  such  as  would  be  binding  between 
the  parties.    Per  HOPKINS,  senator,  id 

10.  Over  and  above  evidence  of  consid- 
eration or  an  honest  debt,  the  statute 
contemplates  something  further  ;  i.  e. 
proof  of  circumstances   showing  ab- 
sence of  an  intent  to  defraud  credit- 
ors &c.    Per  HOPKINS,  senator.      id 

11.  For  this  purpose,   facts  tending  to 
characterize  the  transaction  as  having 
occurred  in  the  ordinary  course  of  fair 
dealing,  are  relevant ;  e.  g.  circum- 
stances of  publicity  accompanying  and 
following  it,  &c.    Per  HOPKINS,  sen- 
ator, id 

12.  So,  as  to  facts  tending  to  show  that 
the  party  leaving  the  possession  un- 
changed was  actuated  by  motives  of 
humanity ;  e.  g.  a  laudable  desire  to 
contribute  to  the  comfortable  support 
of  a  near  relative  or  friend,  or  to  aid 
him  in  a  lawful  business  &c.     Per 
HOPKINS,  senator ;  WALWORTH,  chan- 
cellor, contra.  id 

13.  Proof  that  a  sale   or  mortgage  of 
chattels  is  founded  on  a  sufficient  con- 
sideration, will  not  of  itself  rebut  the 
presumption  of  fraud  arising  from  the 
want  of  a  change  of  possession  ;  and 
unless  more  be  proved,  the  judge  is  not 
required  to  submit  the  cause  to  the  ju- 
ry.   Per  WALWORTH,  chancellor,    id 

14.  Evidence  which  will  be  sufficient  to 
show  good  faith  and  an  absence  of  in- 
tent  to  defraud,  will  also  conclusively 
rebut  the  presumption  of  fraud  which 
the  statute  raises  from  non-delivery  of 
possession ;  and  therefore  no  addition- 
al evidence  is  necessary  to  account  for 
such    non-delivery.       Per   BRADISH, 
president,  and  HOPKINS,  senator.      id 

15.  A  full  and  free  power  of  disposal  of 
chattels  is,  in  general,  an  essential  and 
inherent  incident  of  ownership;  and 
a  vendee  or  assignee  has  the  same 
right  to  leave  them  in  the  possession  of 
the  vendor,  provided  there  be  no  want 


INDEX. 


687 


of  good  faith  and  no  intent  to  defraud 
creditors  &c.,  that  he  would  have  to 
take  them  into  his  own  possession  or 
to  leave  them  w'th  a  third  person. 
Per  BHADISII,  president.  id 

1 6.  History  of  the  law  relating  to  con- 
veyances of  chattels  made  to  defraud 
creditors  &c. ;  and  various    English 
and  American  cases  on  that  subject 
commented  on.     Per  BRADISH,  presi- 
dent, id 

17.  The  case  of  Smith  4-  Hot  v.  Arker, 
(23  Wend.  653,)  reviewed,  explained 
and  approved.     Per  BRADISH,  presi. 
dent,  and  HOPKINS,  senator.  id 

18.  The  same  case  reviewed  and  fur. 
ther  explained  by  WALWORTH,  chan- 
cellor, and  his  reasons  for  the   vote 
there  given  by  him,  stated.  id 

19.  The  case  of  Cole  $   Thwrman  v. 
White,  (26  Wend.  511,)  reviewed  and 
commented    on.     Per    WALWORTH, 
chancellor.  id 

20.  The  words  "  actual  Ate.  change  of 
possession"  in  2  R.  S.  136,  $  5,  are  to 
be  interpreted  literally,  and  will  not 
be  satisfied  by  a  mere  legal  or  con- 
structive delivery.    Per  HOPKINS,  sen- 
ator.  id 

21.  Accordingly,  though  the  vendor  be 
suffered  to  remain  in  possession  in  good 
faith,  as  clerk  of  the  vendee,  this  will 
not  relieve  the  latter  from  the  onus  of 
proving  good  faith  iu  other  respects. 
Per  HOPKINS,  senator.  id 

22.  For  the  purpose  of  rebutting  the  pro- 
sumption  which  the  statute  raises  from 
the  want  of  a  change  of  possession,  it 
is  not  proper  to  a*k  the  vendor,  in  gen- 
eral terms,  whether,  so  far  as  he  is 
concerned,  there  was  any  actual  fraud 
in  the  whole  transaction.    Per  Hor- 
KINS,  senator,  and  WALWORTH,  chan- 
cellor, id 

FRIVOLOUS  DEMURRER. 
See  PRACTICE,  21,  22 

G 

GENERAL  BANK-LAW. 

See  BANKS  AND  BANKING  ASSOCIATIONS. 
TAXES  AND  ASSESSMENTS. 


GENESEE  RIVER. 
Set  Rivcu  AMD  CREEXB. 


GRANTOR  AND  GRANTEE. 

See  ADVERSE  POSSESSION. 
AMOMTSIT. 


GUARANTY. 

1.  A  written  guaranty  is  to  be  construed 
by  the  same  rules  and  may  be  ex- 
plained by  the  sauie  evidence  a*  other 
contracts.  Per  COWCN,  J.  Walratk 
v.  Thompson,  200 

i.  Where  the  guaranty  was  in  the  form 
of  a  letter  from  the  defendant  to  tlio 
plaintiff,  thus :  "  As  there  was  no 
time  set  for  the  payment  of  yoirr  ac- 
count, and  Mr.  J.  thought  it  would  be 
an  accommodation  to  him  to  have 
you  wait  until  &c. ;  if  that  will  answer 
your  purpose,  I  will  be  surety  for  the 
payment"  &c. :  Held,  that  the  words 
your  account  were  ambiguous,  and 
that  parol  evidence  was  admissible  for 
the  purpose  of  applying  them  to  an 
account  of  J.  not  existing  when  the 
letter  was  written,  but  contracted  af- 
terwards on  the  faith  of  it.  id 


3.  Had  the  guaranty  related  to  a  prece- 
dent account  of  J.  with  the  plaintiff. 
it  would  have  been  within  the  statute 
of  frauds,  and  void  for  not  expressing 
a  consideration.  Per  COWCN,  J.  id 


4.    Independently  of  oral 
the  words  of  a  guaranty 


ti    |  •. 


strucd  most  strongly  against  the  guar- 
antor.    Per  COWCN,  J.  id 

See  BILLS  or  EXCHANGE  AND  PROMISSO- 
RY NOTES,  22  to  25. 
FRAUDS,  STATUTE  or. 
USVRT,  5  to  16. 


H 

HEIRS  AND  DEVISEES. 
Ste  Wot. 


INDEX. 


HIGHWAYS. 

See  RIVERS  AND  CREEKS,  5. 
ROADS  AND  HIGHWAYS. 


HOUSE. 

See    JUDGMENTS    AND   EXECUTIONS,    4 
to  9. 


IMPRISONMENT. 

See  NON-IMPRISONMENT  ACT. 

•'INCOME"  AND   "PROFITS.' 
jSee  TAXES  AND  ASSESSMENTS. 

INDEMNITY. 

jSee  ASSUMPSIT. 

INDICTMENT. 

See  CRIMINAL  LAW,  2  to  9. 

INFANCY. 

Where  the  plaintiff  replies  to  a  plea  of 
infancy  that  the  defendant  ratified  the 
several  promises  &c.  after  attaining  to 
the  age  of  21  years,  and  the  defendant 
rejoins,  taking  issue  upon  the  allega- 
tion, the  plaintiff  is  prima  facie  enti- 
tled to  recover  upon  proof  of  a  new 
promise,  without  showing  that  the  de- 
fendant was  of  age  at  the  time  of 
making  it.  Bigelow  and  others  v. 
Grannis,  -206 

INJUNCTION. 

1.  In  general,  courts  of  law  will  not  lend 
their  aid  in  enforcing  injunctions  from 
chancery ;  nor  will  they  ordinarily 
take  any  notice  of  such  writs,  in  the 
course  of  proceedings  at  law.  Per 


NELSON,  Ch.  J. 
Cowing, 


Kelley 


Marcy  v. 
266 


2.  This  court  will  not  interfere  by  manda- 
mus to  compel  a  ministerial  officer  to 
disobey  an  injunction,  unles  it  appear 
to  be  plainly  void  for  want  of  jurisdic- 
tion. Ex  parte  Fleming  and  another, 

581 


3.  Accordingly,  where  a  judge,  acting 
under  the  non-imprisonment  act,  (Sess. 
Laws  of  '31,  p.  396,  §  3  et  seq.,')  made 
out  a  warrant  to  commit  the  defendant 
pursuant  to  the  9th  section,  but,  being 
afterwards  served  with  an  injunction 
from  the  district  court  of  the  United 
Slates  restraining  further  proceedings 
in  the  matter,  refused  to  deliver  the 
warrant  to  be  executed ;  held,  that 
this  court  would  not  compel  the  deliv- 
ery by  mandamus,  no  want  of  juris- 
diction  in   respect  to  the  injunction 
appearing.  id 

4.  The  court  will  not  enquire,  in  such 
case,  whether  the  injunction  was  is- 
sued improvidently.  id 

5.  Semble,  that  an  injunction  to  restrain 
the  execution  of  a  sentence  for  crime 
may   be  treated   as   a  nullity.     Per 
COWEN,  J.  id 

See  PAYMENT. 


INSANITY. 

See  INSURANCE,  1,  2. 

INSOLVENT. 

See  BANKRUPT  ACT. 

PRINCPAL  AND  SURETY,  6  to  13. 

"  INSOLVENT  LAW." 

See  NoN-lMTRisoNMENT  ACT,  2. 

INSPECTION  LAW. 

See  CORPORATION,  31. 


689 

INSURANCE.  consequence  of  which  the  building 

WM  burned  :  Held,  no  defence  to  an 
action  on  the  policv.  Alston  T.  Tk» 
Mrrhanic*'  Mutual  Int.  Co.  n  tkt 
city  of  Troy,  329 

8.  The  term  representation,  when  used 

import  an  affirmation  on  the  pan  of 
the  insured  of  some  past  or  existing 
fact,  material  to  the  nsk  ;  not  a  rtate. 
mcnt  as  to  matter*  resting  merely  in 
intention  or  expectation.  Per  W  At. 
WORTH,  chanrellur.  id 


1 .  A  provision  in  a   life-policy  that  it  is 
to  be  deemed  void  in  cane  the  assured 
shall  "die  by  fits own  hand,"  imports  a 
death  hy  suicide;  i.  <•.  an  act  of  mm. 
inal   scif-di'struclion.      Breasted  and 
others,   adm'rs  JfC.  v.    The  Farmers' 
Loan  and  Trust  Co.,  73 

2.  Accordingly,  in  an  action  on  such 
policy  the  underwriters  will  be  liable 
though    it   appear    that   the   anurcd 
d row  11  fd  himself,  provided  the  act  was 
done  in  a  jit  of  insanity.  id 

3.  In  an  action  by  the  assignee  of  a  poli- 
cy of  insurance,  brought  in  the  name 
of  the  insured,  qnerc,  whether  an  alle- 
gation of  notice  of  low  &.C.  signed  by 
the   plaintiff,    will   be   supported    by 
proof  of  notice  &C.  signed  by  the  as. 
signee.     Mann  v.  The  Herkimtr  Co. 
Int.  Co.,  187 

4.  At  common  law,  the  assignee  of  a 
policy  of  insurance  cannot  sue  upon  it 
in  his  own  name.  id 

5.  Where,  however,  the  charter  of  an 
insurance  company  provided  that,  in 
case  of  an  alienation  of  the  property 
insured  by  sale  or  otherwise,  the  poli- 
cy should  be  void,  but  that  the  gran- 
tee  or  alienee,  having  the  policy  as- 
signed to  him,  might  have  the  same 
ratified  and  confirmed  for  his  use,  by 
the  consent  of  the  company,  within 
thirty  days  next  after  Mich  alienation; 
and  that  this  should  entitle  him  to  all 
the  rights  and  privilege*  of  the  party 
originally  insured  :  Held,  that  a  ratifi- 
cation and  confirmation  pursuant  to  the 
charter,  gave  the  assignee  the  right  to 
BUC  upon  the  policy  in  his  own  name ; 
and  that  no  action  would  lie  in  the 
name  of  the  assignor.  id 

6.  Whether,  under  such  a  charter,  a  rat- 
ification   and    confirmation    by    the 
company  after  the  thirty  days  from 
the  time  of  alienation,  will  render  the 
policy  valid,  quert.  id 

7.  .Where  the  insured,   on  applying  for 
insurance  upon  a  building  against  fire, 
promised    the    underwriters   verbally 
that  if  they  accepted  the  risk  he  would 
discontinue  the  use  of  a  fire-place  in 
the  basement,  and  use  a  stove  instead 
thereof;  but,  af^r  obtaining  the  poli- 
cy, omitted  to  perform  his  promise,  in 

VOL.  IV. 


9.  The  caw  of  ZfennufoMH  T.  Lillie,  (3 
Bligh's  Rep.  202,)  commented  on  and 
doubted.  Per  WALWORTH,  ckanctL 
lor.  id 


10.  A  representation  in  the  nature  of  a 
promise  or  stipulation  for  future  coo. 
duct  on  the  part  of  the  insured,  must, 
in  general,  be  inserted  in  the  policy, 
or  the  underwriters  cannot  avail  them- 
selves of  it.     Per  WALWOETH,  ekan. 
cellar,  and  BOCKEE,  senator.  id 

11.  Parol  evidence  of  what  pawed  be. 
twecn  the  insured  and  underwriter*  at 
and  previous  to  the  delivery  of  the 
policy,  is  not  admissible  for  the  pur. 
pose  of  adding  to  or  varying  itt  terms. 
Per     WAI.WORTII,     chancellor,    and 
BOCKEE,  senator.  id 

12.  The  general  nature  and  cffoc  tofa 
misrepresentation,  properly  so  called, 
adverted  to  and  considered.  Per  WAU 
WORTH,  chancellor.  id 


INTEREST. 
See  USURY. 

INTEREST  OF  WITNESS. 

See  LIEN,  4  to  6. 
WITNESS,  5,  6. 


JOINDER  OF  COUNTS. 

See  EMCCTORS  AND  AomxiSTRATota,  & 
87 


690 


INDEX. 


JOINT  TENANT. 

See  EJECTMENT,  2  to  4. 


JOINT  WRONG-DOERS. 

See  PRACTICE,  36,  37, 
TROVER. 


JOURNALS  OF  THE  LEGISLA- 
TURE. 

See  CONSTITUTIONAL  LAW,  1 1 . 


JUDGE'S  CHARGE  &c, 

ERROR,  3. 

FRAUDULENT  SALE  OF  CHATTELS,  1 
to  4. 


JUDGMENT  AS  IN  CASE  OF 
NON-SUIT. 

See  PRACTICE,  3,  8,  9,  18,  19. 


JUDGMENTS  AND  EXECU- 
TIONS. 

1.  Where  a  sheriff  seizes  goods  owned 
by  two  persons  as  tenants  in  common, 
upon  a  ./i  fa.  against  one  of  them,  and 
afterwards  the  latter    purchases  the 
share  of  his  co-tenant,  the  sheriff  may 
advertise  and  sell  the  entire  interest  or 
property  in  the  goods,  without  making 
a  new  levy.     Birdseye  v.  Ray,       158 

2.  Personal  property  transferred  by  a  de- 
fendant in  a  Ji.  Ja.  before  actual  levy, 
though  after  the  writ  issued,  is  not  lia- 
ble to  seizure  under  the  writ,  provided 
the  transferee  be  a  bona  fide  purchaser 
for  a  valuable  consideration,  and  took 
the  property  without   notice   of  the 
writ.  id 

3.  A  mortgagee,  though  for  a  pre-exist- 
ing  debt,   is  a  purchaser  pro   tanto 
within  the  above  rule.  id 

4.  A  man's  dwelling  house  is  his  castle, 
not  for  his  own   personal  protection 
merely,  but  also  for  the  protection  of 
his  family  and  property  therein.     Per 


WALWORTH,  chancellor. 
Hubbard, 


Curtit   v. 

487 


5.  A  defendant  in  an  execution,  by  clo- 
sing the  outer  doors  of  his  dwelling 
house  against  the  sheriff,  may  prevent 
the  latter  from  entering  to  make  a  levy 
on  his  goods.     Per  WALWORTH,  chan- 
cellar.  id 

6.  As   a  general  rule,  no  one  can  ac- 
quire, by  his  own  illegal  act,  a  right  to 
the   custody   of  another's  person   or 
property.      Per    WALWORTH,     chan- 
cellor, id 

7.  The  outer  door  of  a  dwelling-house 
being  latched  merely,  the  sheriff  en- 
tered it  contrary  to  the  known  will  of 
the  owner,  and  levied  upon  his  goods 
therein  by  virtue  of  a  fi  fa.:    HELD, 
illegal,  though  the  owner  was  not  in 
the  house  at  the  time ;  and  that  the 
levy  gave  the  sheriff  no  right  to  re. 
move  the  goods.  id 

8.  Held,  further,  that  even  a  guest  in 
the  house   might  lawfully   resist  the 
sheriff's  attempt  to  remove  goods  thus 
seized,  using  no  more  force  than  was 
necessary.  id 

9.  The  case  in  the  Year  Book,  18  E.  4, 
(fol.  4,  pi.  19,)  commented  on  and  ex- 
plained.   Per  WALWORTH,  chancellor, 

id 

10.  Where   a  defendant  moved  to  set 
aside  a  judgment  entered  up  on  bond 
and  warrant  of  attorney,  on  the  ground 
that  the  latter  were  given  ia  conside- 
ration of  a  promise  by  the  plaintiff  to 
make   certain    advances    of    money 
thereafter,  which  he  had  wholly  failed 
to  do ;  held,  that  the  promise  being  a 
sufficient  consideration  to  uphold  the 
judgment,    the    defendant's    remedy 
was  by  action  for  a  breach  of  it,  and 
the     motion    was    therefore    denied. 
Nelson  v.  Sharp,  584 

11 .  Even  had  the  arrangement  as  to  the 
advance  of  money  been  in  the  nature 
of  a  defeasance,  yet,  resting  in  parol 
merely,  it  could  not*  have  been  set  up 
as  a  ground  for  interfering  with  the 
judgment.     Per  COWEN,  J,  id 

12.  Judgments  and  decrees  entered  af- 
ter the  act  of  1840  (Sess.  L.  '40,  p. 
327)  took  effect,  though  recovered  in 
suits  commenced  before  that  time,  are 


INDEX. 


not  lien*  on  real  estate  unless  docket- 
ed  in  the  counties  where  the  land*  are 
situated.  Ex  parte  Becker,  613 

1 3.  A  mere  levy  upon  real  estate  in  vir- 
tue of  a  Ji.  /a.,  never  amounts  to  a 
satisfaction.     Per  BRONSON,  J.     Tay- 
lor and  others  v.  Kanney  and  Orate, 
im pleaded  «J-r,  619 

14.  Where,  in   scire  facia*  to  revive  a 
judgment,   the   tcrrc-tcnant   pleaded 
that  the  plaintiff  issued  &fi.fa.  upon 
the  judgment,  and  that  in  virtue  there- 
of the  sheriff  caused  to  be  levied  "  the 
damages  &c.  on  the  goods  and  chat- 
tels,  lands  and  tenement?'  of  the  de- 
fendant ;  held,  not  sufficient  to  show 
the  judgment  satisfied,  and  that  the 
plea  was  therefore  bad.  id 

15.  Otherwise,  had  the  allegation  in  the 
plea  been  that  the  damages  &c.  were 
levied  of  the  goods  and  chattels,  lands 
and  tenements  &c.    Per  BRONSON,  J. 

id 

16.  It  is  a  general  principle  that  trans- 
actions  between  A.  and  B.,  whether 
in  or  out  of  court,  shall  not  have  such 
an  effect  as  will  take  away  the  pre- 
viously acquired  rights  of  third  per- 
sons.   Per  BRONSON,  J.  id 


17.  \fi.fa.  having  been  returned  satis- 
fied, an  entry  was  made  in  the  docket 
of  the  judgment  pursuant  to  2  R.  S. 
362,  §  26,  and  the  return  was  after- 
wards vacated  by  order  of  the  court : 
Held,  that  lands  sold  by  the  execu- 
tion debtor  to  a  bona  fide  purchaser, 
after  the  entry  in  the  docket  and  be- 
fore the  vacatur,  could  not  be  affected 
by  the  judgment.  id 

18.  As  against  the  judgment  debtor, 
however,  his  heirs   Ate.,  such   order 
will  operate  restrospectively,  and  car- 

Sback  the  lien  of  the  judgment  to 
o  date  of  the  original  docket     Per 
BRONSON,  J.  id 

19.  Where,  in  scire  facias  to  revive  a 
•     judgment,   the   terrc-tenant    pleaded 

the  return  of  an  execution  satisfied, 
an  entry  upon  the  docket  pursuant  to 
the  above  statute,  and  that  after  such 
entry  he  purchased  the  lands  in  ques- 
tion in  good  faith,  for  a  valuable  con- 
sideration ;  held,  that  the  plea  was 
bad,  inasmuch  u  it  did  not  set  forth  a 


691 

purchase  from  or  under  the  jodnMOt 
debtor.  id 


Set  ARBITRATION  AND  AWARD. 
ATTACHMENT. 

BILL*  or  EXCHANGE  AND  PROMIS- 
SORY NOTES,  3, 4,  80. 
EVIDENCE,  8. 

LANDLORD  AND  TENANT,  5,  6. 
MORTGAGE  or  CHATTELS. 
PRACTICE. 

PRINCIPAL  AMD  SURETY,  1  to  5. 
REDEMPTION  or  LAMM. 
SET-OFF. 


JURISDICTION. 
See  DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RE*IDENT,  7  to    11. 

INJUNCTION,  2  to  5. 
PRACTICE,  23. 


JUSTIFICATION  OF  SURETIES 

See  DEBTORS,  ABSCONDING,  CONCEALEI 
AND  NON-RESIDENT,  1  to  4. 


LANDLORD  AND  TENANT. 

1.  Goods  of  a  mere  under-tenant  which 
have  been  removed  from  the  demised 
premise*  before  any  rent  became  due, 

•  are  not  liable  to  be  distrained  for  sub* 
scqucntly  accruing  rent.  Acker,  sker. 
iff  fc.  v.  Wither  ell  and  other*,  112 

2.  Otherwise,  if  the  good*  belong  to  one 
who  occupied  as  assign*  of  the  origi- 
nal tenant.  id 


3.  The  fact  of  demised  premises  being 
found   in   the   possession  of  one  not 
named  in  the   lease,  raisrs  the   pre- 
sumption  that  he  is  in  as  assignee  of  the 
lessee  and   not  as  under-tenant ;  es- 
pecially if  it  appear  that  he  has  paid 
rent  to  the  original  landlord.  id 

4.  Though  goods  be  seixcd  by  the  sber. 
iff  under  an  attachment  afainvt  an 
absconding  debtor,  this  detracts  natk. 
ing  from  the  landlord's  right  to  dts. 
train  them  for  rent.  id 


692 

5.  A  notice  of  rent  being  due,  given  by 
a  landlord  to  an  officer  pursuant  to  1 
H.  S.  746,  §  12,  is  in  the  nature  of 
process,  and  should  state  facts  enough 
to  show  that  the  landlord  is  entitled 
to  a  preference  over  the   execution 
creditor.     Per  BRUNSON,  J.    Millard 
v.  Robinson,  604 

6.  Accordingly,  where  the  goods  of  R. 
were  taken  in  execution,  and  the  no- 
tice showed,  among  other  things,  that 
the  premises  on  which  the  seizure  was 
made  were  in   the  vccvpalion   of  R. 
and    others,    and    that    a    specified 
amount  was  due  to  L.,  the  landlord, 
for  a  balance  of  one  year's  rent  of 
said  premises  &.C.,  but  did  not  show 
R.  to  be  the  tenant  of  L. ;  held,  that 
the  notice  was  defective,  and  that  the 
officer  might  therefore  disregard  it.  id 

See  EJECTMENT,  5  to  7. 


LAW  AND  FACT. 

See  EVIDENCE,  3,  7,  16. 

FRAUDULENT  SALE  or  CHATTELS. 
TKOVER,  3,  7. 


••  LAW  OF  THE  LAND." 
See  CONSTITUTIONAL  LAW,  3. 

LEGAL  JUDGMENT. 

See  COURT  OF  ERRORS. 

LEGISLATIVE  JOURNALS. 
See  CONSTITUTIONAL  LAW,  11. 

LEGISLATIVE  POWER. 
See  CONSTITUTIONAL  LAW. 

LETTER. 

See  GUARANTY. 

LEVY. 

&«e  JUDGMENTS  AND  EXECUTIONS,  1  to  9, 

13  to  15. 
MORTGAGE  OF  CHATTELS. 


LIEN. 

1.  Under  the  New- York  city  mechan- 
ics' act,   (Sess.  L.   '30  p.  412,   and 
Seas.  L.  '32,  p.  181,)  the  claimant 
cannot  acquire  a  lien  on  unliquidated 
damages  which  have  accrued  to  the 
builder  by  reason  of  a  violation  of  tho 
contract  on  the  part  of  the  owner ;  but 
the  lien  is  restricted  to  such  funds  cs 
are  due  or  to  become  due  for  actual 
performance.     Miner  v.  Hoyt,       193 

2.  In  an  action  under  the  above  law, 
the  owner  is  entitled  to  be  allowed  for 
all  demands  he  held  against  the  build- 
er at  the  time  the  attested   account 
was  served,  provided  they  be  such  as 
might  have  been  set  off  in  an  action 
brought  by  the  builder  himself.        id 

3.  Otherwise,  if  the  set-off  be  shown  to 
have   been   created  in  fraud  of   the 
plaintiff 's  lien.     Per  COWEN,  J.       id 

4.  The  plaintiff  in  such  action  cannot 
use  the  builder  as  a  witness,  he  being 
interested.  id 

5.  A  release  to  the  builder,  sufficient  to 
obviate  the  objection  as  to  his  interest, 
would  necessarily  extinguish  the  plain- 
tiff's right  of  action;   and  this  not- 
withstanding an  express  declaration  in 
the  release  that  such  was  not  the  in- 
tent.   Per  COWEN,  J.  id 

6.  Where  a  release  of  this  character, 
however,  is  given  by  the  plaintiff  at 
the  trial,  the  defendant  can  only  avail 
himself  of  the  fact  by  pleading  it  puis 
darrein    continuance.     Semble  ;  per 
COWEN,  J.  id 

See  CORPORATION,  30. 

JUDGMENTS  AND   EXECUTIONS,   12, 
17  to  19. 


LIFE  POLICY. 

See  INSURANCE,  1,  2. 

LIMITATIONS,  STATUTE  OF. 

Though  the  general  statute  of  limita- 
tions docs  not  in  terms  apply  to  a  bill 
in  equity,  even  when  concurrent  with 
the  remedy  at  law ;  yet  the  court  of 
chancery  always  allows  it  to  be  plead- 


INDEX. 


f>93 


cd  in  such  eases.  Per  COWEN,  J 
The  People  ex  rel.  $c.  v.  Everett, 
late  sheriff  $c.t  71 

See  ATTACHMENT. 
PRACTICE,  4,  5. 


M 

MAIL,  SERVICE  BY. 

Ste  BILLS  or  EXCHANGE  AND  PROMISSO- 
RY NOTES,  6. 


MANDAMUS. 

A  mandamus  is  a  prerogative  writ 
which  this  court  may  issue  or  with- 
hold  in  its  discretion.  Per  COWEN,  J. 
Ex  parte  Fleming  and  another,  581 

See  INJUNCTION,  1  to  4. 


MASTER  IN  CHANCERY. 

See  CHANCERY,  9. 
DEED,  1,3. 
WITNESS,  4. 


MECHANICS'  LIEN. 
See  LIEN. 

MEMORANDUM. 

See  BAILMENT. 

EVIDENCE,  1  to  7,  12  to  16. 

MERGER. 

See  ASSUMPSIT,  4. 

INSURANCE,  7,  10, 11. 

MILITIA. 

See  COURT  MARTIAL. 

MISJOINDER    OF    COUNTS. 
See  EXECUTORS  AND  ADMINISTRATORS,  8. 


MONEY  PAID. 


See  AsstmruT,  1,  3. 

BILLS  or  EXCHANGE  AND  PRO 
RY  NOTES,  8  to  10. 


MORTGAGE  OF  CHATTELS. 

1.  SrmMe,  that  the  interest  of  a  mortga- 
gor in  personal  property  may  be  law. 
fully  seized   and   sold  on   a  fi.  fa. 
against  him,  subject  to  the  claim  of 
the  mortgagee,  at  any  time  before  the 
latter  has  exercised  his  right  of  redo. 
cing  the  property  to  possession.    Per 
WALWORTH,  chancellor.    Hanford  v. 
Artier,  971 

2.  At  all  events,  replevin  in  the  tepit 
will  not  lie  by  the  mortgagee  against 
the  sheriff  for  the  mere  act  of  levying 
under  such  circumstances.     Srmble. 
Per  WALWORTH,  chancellor.  id 

3.  Quere,  however,  whether  the  action 
will  not  lie,  where  the  sheriff  levies 
upon  the  whole  interest  in  the  proper- 
ty.    Per  HOPKINS,  senator.  id 

See  FRAUDULENT  SALE  or  CHATTELS. 
JUDGMENTS  AND  EXECUTIONS,  3. 
MORTGAGE  or  VESSELS. 


MORTGAGE  OF  LANDS. 

1 .  A  decree  of  foreclosure  is  inoperative 
by  way  of  estoppel  upon  one  not  made 
a  party  to  the  suit,  and  who  entered 
into  possession  of  the  mortgaged  prem- 
ises before  the  suit  was  commenced  ; 
nor  can  he  be  turned  out  of  possession 
by  an  execution  on  the  decree.     Ful- 
ler v.  Van  Geettn,  171 

2.  In  ejectment,  however,  by  a  purchas. 
cr  under  the  decree,  against  one  not  a 
party,  the  former  may  on  the  record 
of  the  foreclosure  suit  by  way  of  de- 
raigning  title.  id 

3.  The  decree  cannot  be  invalidated  or 
questioned,  in  such  case,  on  the  ground 
of  mere  error  or  irregularity.  id 

4.  Where  the  charter  of  a  corporation 
gave  the  company  power  V>  take  mart- 


gages,  and  then  provided  that  all . 
in  virtue  of  them  should  be  made  in 


694 


INDEX. 


the  county  where  the  property  was 
situated  :  held,  that  a  decree  of  fore- 
closure, though  describing  the  proper- 
ty as  being  in  the  county  of  O.,  and 
directing  a  sale  there,  whereas  it  was 
situated  in  the  county  of  M.,  was  not 
impeachable  on  this  ground  collateral- 
ly ;  and  that,  upon  a  sale  made  in 
pursuance  of  it,  the  purchaser  acquir- 
ed a  good  title.  id 

5.  The  clause  in  the  charter  may  be 
satisfied  by  confining  it  to  a  summary 
foreclosure  at  law ;  at  all  events,  even 
if  applicable  to  a  foreclosure  in  chan- 
cery, it  is  but  directory  as  to  tHat 
court,  and  an  error  in  respect  to  it  can 
only  be  corrected  on  appeal.  Per 
COWEN,  J.  id 

See  ASSUMPSIT,  1,  2. 
DEED,  1,  2. 

EVIDENCE,  9, 10,  19,  20. 
EXECUTORS  AND  ADMINISTRATORS,  4. 


MORTGAGE  OF  VESSELS. 

A  mortgagee  of  a  ship,  who  has  taken 
possession  and  caused  it  to  be  register- 
ed-in  his  own  name,  will,  in  general, 
be  liable  for  supplies  furnished  and 
repairs  made ;  and  this,  though  his 
relation  to  the  ship  was  unknown  to 
the  creditor  when  the  demand  arose. 
Miln  v.  Spinola,  177 


MOTIONS,  ENUMERATED  AND 
NON-ENUMERATED. 

See  NEW  TRIAL,  4  to  6. 


MUNICIPAL  CORPORATIONS. 

Sec  BILLS  OF  EXCHANGE  AND  PROMISSO- 
RY NOTES,  17  to  21. 
CONSTITUTIONAL  LAW,  6,  7,  12,  14. 
CORPORATIONS. 


p  N 

NEGLIGENCE. 

See  DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  5,  6. 
OFFICE  AND  OFFICER,  4  to  9. 
ROADS  AMD  HIGHWAYS,  3,  4. 


NEWLY  DISCOVERED  EVI- 
DENCE. 

See  NEW  TRIAL,  6. 


1.  A  new  trial  will  not  be  granted  on 
the  sole  ground  of  the  verdict  being 
against  the  weight  of  evidence,  except 
upon  payment  of  costs.     Goodyear  v. 
Ogden  and  Pearl,  104 

2.  The   case  of  Green   v.  Burke,   (23 
Wend.  490,)  commented  on,  and  the 
reporter's  abstract  of  it  corrected,      id 

3.  After  judgment  has  been  perfected  on 
a  verdict  rendered  at  the  circuit,  it  is 
too  late  to  move  for  a  new  trial  on 
the  mere  ground  of  surprise.  Rapelye 
and  Pur dy  v.  Prince  and  Prince,  119 

4.  In  general,  a  motion  for  a  new  trial 
on   the   ground   of  surprise   will   be 
heard  only  at  the  special  term ;  and 
this,  though  a  case  or  bill  of  excep- 
tions have  been  made.  id 

5.  If  such  motion  be  made  where  there 
is  also  a  case  or  bill  of  exceptions,  the 
court  may,  in  its  discretion,  suspend  a 
decision  until  the  enumerated  motion 
shall  have  been  argued.    Per  BRON- 
SON,  J.  id 

6.  Where  the  intention  is  to  move  o» 
the  ground  of  newly  discovered  evi- 
dence, the  ground   of  surprise   may 
also  be   added,    and  the  whole   will 
then  be  heard  together  at  the  general 
term.    Per  BRONSON,  J.  id 

7.  The  granting  or  refusing  of  a  motion 
for  postponement    at   the    circuit    is 
within   the  discretion    of  the  judge, 
and  his  decision  ought  not,  in  general, 
to  be  interfered  with.     Per  COWEN,  J. 
Vennilyea  v.  Rogers,  567 

See  EJECTMENT,  6. 
ERROR. 


NEW  YORK,  CITY  Of. 
See  CONSTITUTIONAL  LAW,  6  to  14. 

LlBN. 


INDEX. 


NON-IMPRISONMENT  ACT. 

1.  Where  a  debtor  is  proceeded  against 
by  warrant  under  the  third  and  niib- 
•equcnt  sections  of  the  non-imprisnn. 
nicpt  act,  (Sett.  L.  of  '31,  p.  396.) 
and  obtains  a  discharge  pursuant  to 
the   seventeenth  section,  the  awign- 
raent  enures  only  to  the  benefit  of  the 
creditor  on  whose  application  the  pro. 
eceding  was  instituted,  and  not  to  the 
benefit  of  creditors  generally.      Per 
COWEN,  J.     Berthelon  v.  Betii,     577 

2.  That  part  of  the  act  authorizing  a 
debtor  to  be  thus  proceeded  against  is 
not  an   insolvent  law,  and  therefore 
was  not  suspended  by  the  act  of  con- 
gress in  relation  to  bankruptcy  passed 
August  19th,  1841.  id 

3.  The  proceeding  contemplated  by  the 
3d   section   of  the  non-imprisonment 
act  is  of  a  civil  and  not  a  criminal  na- 
ture.     Per    COWEN,  J.      Ex  forte 
Fleming  and  another,  581 

4.  An  order  being  made  for  the  commit- 
ment of  a  debtor  under  the  9th  section 
of  the  non-imprisonment  act,  he  pre- 
sented to  the  officer  making  it  an  in- 
ventory of  his  estate  &c.  pursuant  to 
the  third  subdivision  of  the  10th  sec- 
tion,  for  the  purpose  of  obtaining  a  dis- 
charge.    The  application  was  opposed 
by   the  creditor  and  denied,  on  the 
ground  that  the  debtor's  proceedings 
were  not  just  and  fair  and  that  he  was 
chargeable   with  actual  fraud.     The 
debtor  was  then  committed  to  jail  and 
afterwards  applied  for  a  discharge  to 
another  officer  under  the  12th  section 
of  the  act     Held,  that  the  debtor  was 
estopped  from  trying  the  same  matter 
over  again  so  long  as  the  first  decision  j 
remained  unreversed,  and  that  the  of- 
ficer's order  dismissing  the  second  ap- 
plication for  that  reason,   was  right. 
The  People  ex  rel.  Lodowick  v.  At, 
kin,  judge,  $c.,  606 

See  BANKRUPT  ACT,  1,2. 
Cosys,  7. 
INJUNCTION,  3,  4. 


NONSUIT. 

See  FRAUDULENT  SALE  or  CHATTELS,  8, 

10,  13. 
PRACTICE  AT  THE  TRIAL,  2,  3. 


NONSUIT,  JUDGMENT  AS  IN 
CASE  OF. 

See  PRACTICE,  3,  8,  9, 18,  19. 


NOTARY. 

A  notary  public  cannot  delegate  hi*  ot 
ficial  authority  to  another.  Ptr  BROX. 
BON,  J.  Sheldon,  ex'r  «J-c.  v.  Benksm, 
impfd.  $c.,  199 


See  BILLS  or  EXCHANGE  AND  Pi 
*y  NOTES,  14,  15. 


NOTICE. 

See  CORPORATION,  16,  22,  24  to  26. 
DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  1  to  4. 
INSURANCE,  3. 
LANDLORD  AND  TENAJTT,  5,  6. 


NOTICE    OF    MOTION    TO 
CHANGE  VENUE. 

See  VENUE,  11,  12. 


NOTICE  OF  PROTEST. 

See  BILLS  or  EXCHANGE  AKD  PR 

RY  NOTES,  6, 14,  15,31. 
EVIDENCE,  12,  13. 


o 

OBJECTION,  WAIVER  OF. 
See  ERROR,  1.  9. 

OFFICE  AND  OFFIl'ER. 

1.  As  a  general  rule,  all  public  officrr*, 
though  not  expressly  authorized  to  MIO 
by  statute,  hare  a  capacity  ti  «c 
commensurate  with  their  public  tiwt« 
and  duties.  Prr  BROM«OX,  J.  T!*e 
Supervisor  of  the  loten  of  (Jalvay  r. 
Stiwuon,  13G 

i.  In  actions  cither  by  or  •?•!«*  any 
of  the  officers  named  in  2  K  8 .  473. 
4  92,  the  individual  name  of  the  in. 


696 


INDEX. 


cumbent  must  be  used,  with  the  ad- 
dition  of  his  name  of  office.  *  id 

3.  Accordingly,   where  the  action  was 
in  the  name  of  "  The  supervisor  of 
the  iown  of  G.,"  without  mentioning 
the  name  of  the  incumbent ;  held,  that 
i  could  not  be  maintained.  id 

4.  When  an  individual  sustains  an  inju- 
ry by  the  misfeasance  or  nonfeasance 
of  a  public  officer  who  acts  or  omits  to 
act  contrary  to  his  duty,  the  law  gives 
redress  to  the  injured  party  by  action 
adapted   to  the  nature   of  his   case. 
P'er  BRONSON,  J.     Adsit  and  others  v. 
Brady,  630 

5.  It  is  the  duty  of  3  superintendent  of 
repairs  on  the  canal,  when  he.  finds  a 
break  in  it  or  a  sunken  boat  obstruct- 
ing the  navigation,  to  stop  the  breach 
a'  remove   the    obstruction    withour. 
waiting  for  orders  from  the  commis- 
sioners ;  and  by  omitting  to  do  so  he 
will  render  himself  liable  to  persons 
sustaining  damage  thereby.  id 

6.  Otherwise,  ;f  the  omission  to  repair 
resulted  from  obedience  to  orders  given 
by   the   commissioners.      Per    BRON- 
SON, J.  id 

7.  The  fact  of  such  orders  having  been 

fivcn,  however,  will  not  be  presumed, 
ut  must  be  shown  affirmatively.  Per 
BRONSON,  J.  id 

8.  Where  a  declaration  against  a  super- 
intendent stated,  in  substance,  that  a 
boat  which  had  been  sunk  in  the  canal 
rendered  the  navigation   unsafe  ai:d 
dangerous,  and  that,  though  the  de- 
fendant had  notice,  (fee.,  119  negligent- 
ly suffered  the  boat  to  remain,  where- 
by the  plaintiff's  boat  in  passing  along 
the  canal  was  injured ;  held,  sufficient 
to  show  the  defendant  liable,  notwith- 
standing the  svant  of  an  averment  that 
he  had  public  money  in  his  hands  for 
the  purpose  of  making  repairs.          id 

9.  Held,  further,   that  the   declaration 
need  not  aver  the  neglect  of  the  de- 
fendant to  have  been  wilful  and  ma- 
licious, id 

Ste  ATTACHMENT. 
ATTORNEY. 

BANKS  AND  BANKING  AssociArioNS,!. 
BULLS  OF  EXCHANGE  AND  PROMISSO- 
RY NOTES,  20. 


See  BOND,  3  to  7. 

COMMON  SCHOOLS,  3, 4. 

CONSTITUTIONAL  LAW,  7,  14. 

CORPORATION,  1, 2. 

COSTS,  9. 

DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  5,  6. 
INJUNCTION,  2  to  4. 
JUDGMENTS  AND  EXECUTIONS,  1  to  9. 
LANDLORD  AND  TENANT,  4  to  6. 
MORTGAGE  OF  CHATTELS,  2,  3. 
NOTARY. 

ROADS  AND  HIGHWAYS,  2  to  4. 
SUPERINTENDENTS  OF  THE  POOR. 


ONUS  PROBANDI. 

See  CORPORATION,   9  to  14,  17  to  19, 

22,  23. 
COVENANT,  13. 
EJECTMENT,  1  to  3,  5. 
FRAUDCLENT  SALE  OF  CHATTELS. 
INFANCY. 
OFFICE  AND  OFFICER,  7. 


ORDER  OF  JUDGE  OR  COMMIS- 
SIONER. 

See  PRACTICE,  32  to  34. 


OUSTER. 
See  EJECTMENT,  2  to  4. 

OUTER  DOOR. 

See  JUDGMENTS  AND  EXECUTIONS,  4  to  9. 

OVERSEERS  OF  THE  POOR. 

See  SUPERINTENDENTS  op  THE  POOR. 


PAROL  EVIDENCE. 

See  ASSUMPSIT,  4. 
BAILMENT. 

BILLS  OF  EXCHANGE  AND  PROMISSO- 
RY NOTES,  13,  25. 
COVENANT,  14  to  16. 
EVIDENCE,  1  to  7,  13  to  16,  19, 20. 
GUARANTY. 
INSURANCE,  7  to  11. 
JUDGMENTS  AND  EXECUTIONS,  11. 


INDEX. 


697 


PARTICULARS,  BILL  OF. 

See  COSTS,  10. 

PRACTICE,  13  to  17. 


PARTIES  TO  ACTION. 

See  BILLS   of  EXCHANGE  AND  PROMM. 
SORV  NOTES,  1  to  4,  7  to  12,  30. 
COMMON  SCHOOLS,  3,  4. 
DEBTORS,  ABSCONDING,  CONCEALED 

AND  NoN.RE81DL.VT,  5,  G. 

EXECUTORS   AND   ADMINISTRATORS, 

2,  3,  8. 

INSURANCE,  3  to  6. 
MORTGAGE  or  LANDS. 
OFFICE  AND  OFFICER,  1  to  3. 


PARTNERSHIP. 

1.  An  accommodation  endorsement 
made  by  one  member  of  a  mercantile 
firm  without  the  assent,  either  express 
or  implied,  of  his  co-partners,  cannot 
be  enforced  against  the  latter,  except 
in  favor  of  a  bona  fide  holder  without 
notice.  Per  NELSON,  Ch.  J.  Austin 
and  others  v.  Vandermark,  impfd., 
Jt.  259 


2.  N.  gave  L  a  business  note,  endorsed 
by  M.,  which  was  transferred  to  A. 
After  the  note  fell  due,  M.,  being  in- 
debted to  N.,  made  another  note  for 
the  same  amount,  payable  to  the  order 
<if  anil  endorsed  by  the  latter  together 
with  V.  &,  Co.,  and  sent  it  to  A.  as  a 
Fubrtitute  for  the  first  note,  which  he 
desired  should  be  returned  to  him. 
Held,  that  though  the  firm  name  of 
V.  &.  Co.  was  used  for  M's  accom- 
modation, the  circumstances  were  not 
sufficient  to  charge  A.  with  knowl- 
edge of  the  fact;  and  that  he  was 
therefore  entitled  to  a  verdict  against 
ull  the  members  of  the  firm,  though 
the  endorsement  was  made  by  one, 
without  the  knowledge  or  consent  of 
the  others. 

See  TROVE*,  2. 


PAYING  MONEY  INTO  COURT. 
See   BONO,  1,  2. 

VOL.  IV. 


PAYMENT 


H.  having  made  a 
ment  of  all  his  effects  far 
of  creditors,  an  injunction  i 
ed  on  a  bill  filed  again*  him  and  the 
•ssi|Tiore  [retrain  iiifl  thnn  fromcoUee- 
ting  or  receiving  any  debts  doe  to  H. ; 
after  which,  C..  with  full  knowledge 
of  the  injunction,  paid  to  the  as- 
signees the  amount  of  a  note  given 
them  for  an  account  which  H.  had 
against  him.  Held,  in  an  action  oa 
the  note  by  one  to  whom  it  was  Iran*, 
ferred  after  it  became  doc,  that  the 
Daymem  to  the  assignee,  constituted  a 
good  defence.  Kelley  $  Mercy  v. 
Cowing,  266 

See  Asauvnrr,  1  to  3. 

REDEMPTION  OP  LANDS,  4,  5,  10, 1 1. 


PLEADING. 

In  declaring  upon  a  note  for 

sum  payable  in  specific  articles  at  a 
certain  time  and  place,  it  »  soAcient 
for  the  plaintiff  to  aver  that,  by  reason 
of  the  making  of  the  note,  the  de- 
fendant became  liable  to  par,  bat  had 
not  paid  &c.,  without  aQeging  in 
terms  a  non-delivery  of  the  article*. 
Rockwell  and  other*  tx'rt,  $c.,  v. 
Rockwell,  164 

See  Com,  11. 

COVENANT.  2  to  9. 

CRIMINAL  LAW,  2  to  8. 

DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT.  G. 
EXECUTORS  AMD  ADMINISTRATORS^. 
INFANCY. 
JUDGMENTS   AND    EXECUTIONS,  14, 

14.  19- 
LIEN,  6. 

LIMITATIONS,  STATUTE  or. 
OFFICE  AMD  OFFICER,  8,  9. 
PRACTICE,  26,  31. 
REFLEMN.  .'. 
ROADS  AND  HIGHWAYS,  3,  4. 


POLICY  OF  INSURANCE. 

See  INSURANCE. 

POOR. 

Set  ScFBRINTENDOm  OF  THE  PoOR. 

88 


698 


INDEX. 


POSSESSION. 


See  ADVERSE  POSSESSION. 
EJECTMENT. 
EVIDENCE,  17,  18. 
FRAUDULENT  SALE  OF  CHATTELS. 


POSTPONEMENT  OF  TRIAL. 

See  NEW  TRIAL,  7. 
USURY,  19. 


POWER  AND  AUTHORITY. 

See  BANKS  AND  BANKING  ASSOCIATIONS. 

BILL  OF  EXCEPTIONS. 

BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  18  to  20,  29. 

COMMON  SCHOOLS,  2  to  4. 

CONSTITUTIONAL  LAW. 

CORPORATION,  4,  5,  7  to  31. 

DEBTORS,  ABSCONDING,  CONCEALED 
AND  NON-RESIDENT,  7  to  11. 

EXECUTORS  AND  ADMINISTRATORS, 
4  to  7. 

INJUNCTION,  2  to  5. 

MANDAMUS. 

NOTARY. 

OFFICE  AND  OFFICER. 

PARTNERSHIP. 

WILL,  6,  8. 


PRACTICE. 

1.  In  an  action  against  the  maker  and 
endorser  of  a  promissory  note,  after 
severance  and  judgment  against  one 
of  the  defendants,  his  name  should 
no  longer  be  used  either  in  the  plead- 
ings or  proceedings  against  the  other 
defendant.     Anonymous,  2C 

2.  Accordingly,  where,  after  severance 
and  judgment  against  C.  D.,  one  of 
the  defendants   in  such    action,  the 
other  instituted  proceedings  for  judg. 
ment  as  in  case  of  nonsuit,  entitling 
his    papers   thus,  "  A.    B.  impleadec 
with  C.  D.  ads."  &c. ;  held,  that  they 
were  not  properly  entitled,  and  the 
motion  was  therefore  denied.  it 

3.  An  affidavit  on  which  to  move  foi 
judgment  as  in  case  of  nonsuit  in  an 
action  of  replevin,  is  insufficient  un 
less  it  state  that  neither  party  has  no 
ticed  the  cause  for  trial.     WiUiamt  v 
Blauvelt,  27 


i.  After  an  application  to  set  aside  a  re- 
port of  referees  on  the  merits  is  de- 
cided, a  motion  for  leave  to  have  a 
statement  of  facts  settled  and  inserted 
in  the  judgment  record,  with  a  view 
to  a  writ  of  error,  will  be  denied,  if  it 
appear  that  the  time  limited  for  bring- 
ing error  has  expired.  Lee  v.  Tillot- 
son,  27 

5.  The  time  limited  for  bringing  error, 
in  such  case,  dates  from  the  "  final 
determination"  of  the  court,  i.  c.  the 
term  when  the  motion  to  set  aside  the 
report  was  actually  decided ;  and  not 
from  the  entry  of  the  rule  for  judg- 
ment upon  the  report,  nor  from  the 
filing  of  the  judgment  record.  id 

5.  On  a  motion  to  set  aside  a  capias  ad 
respondendum  because  of  its  being  re- 
turnable at  a  wrong  place,  the  plain- 
tiff will  be  allowed  to  amend  on  pay- 
ment of  costs  without  a  cross  motion 
for  that  purpose.  Jones  v.  Williams 
and  others,  34 

7.  Where  the  suit  was  against  nine  de- 
fendants who  had  appeared  by  three 
different  attorneys,  and  three  sets  of 
papers  had  been  served  for  the  motion, 
the  amendment  was  allowed  on  pay- 
ment of  but  one  bill  of  costs.  id 

8.  Though,  upon  a  cause  being  called 
at  the  circuit  in    ts  regular  order  on 
the  calendar,  the  defendant  consent, 
for  the  plaintiff's  accommodation,  that 
it  be  set  down  for  trial  at  a  subse- 
quent day,  and  the  cause  is  not  again 
reached,  the  defendant  will  neverthe- 
less be  entitled  to  judgment  as  in  case 
of  nonsuit.    Root  v. ,  38 


9.  Otherwise,  where  the  cause  is  passed 
for  the   defendant's  accommodation, 
or  a  mutual  agreement  is  made  to  try 
the  cause  on  a  particular  day,  and  it 
is  passed  on  the  calendar  before  the 
day  arrives.    Per  BRONSON,  J.         id 

10.  On  moving  for  a  consolidation  of 
actions,  it  is  not  enough  for  the  defen- 
dant to  show  that  the  causes  of  ac- 
tion are  such  as  may  be  joined  in  one 
declaration  ;  but  it  must  affirmatively 
appear,   in  addition,  that  no  defence 
is  intended  in  either  of  the  suits,  or 
that  the  questions  which  will  arise  in 

;     them    are    substantially    the    eame. 
Wilkinson  v.  Johnson,  4!i 


LNDEX. 


699 


11.  It  IB  not  an  objection  to  a  eonsolida- 
tion,  that  the  actions  are  baaed  on  dif- 
ferent transactions,    provided  no  de- 
fence be  intended  in  either,  and  the 
rule  is  only  asked  to  avoid  the  ex- 
pense of  entering  up  several  judgments. 
Per  BBONSON,  J.  id 

12.  Nor  will  the  rule  in  such  case  be  re- 
fused even  though  the  suits  are  to  be 
defended,  provided  the  questions  to  be 
tried  are  identical ;  as  where  the  suits 
are  brought  upon  distinct    contracts 
originating   in    different  transaction*, 
and  the  defendant  docs  not  deny  the 
validity  of  the  contracts,  but  sets  up 
some  matter  in  discharge,  going  to  the 
whole  of  the  plaintiff 's  demand— c.  g. 
payment,  release,  accord  and  satisfac- 
tion, insolvency,  bankruptcy,  «kc.  Per 
BRO.NSOS,  J.  id 


13.  A  bill  of  particulars  furnished  pursu- 
ant  to  a  judge's -order,    containing 
several  charges  for  cash,  without  sta- 
ting whether  the  money  was  lent  to, 
paid  out  for,  or  received  by  the  defen- 
dant, is  insufficient.  Stanley  and  othfrt 
v.  Millard,  50 

14.  So  of  a  bill  containing  charges  for 
notes,   giving  the    amount  of  each, 
without  any  other  description.          id 


15.  So  of  a  bill  containing  items  for  j 
goods  sold  &c.,  giving  dates  and  sums  j 
with  particularity,  and  then  adding  :  ! 
"  The  same  item*  a»  above  in  every  ; 
respect  in  each  year,  and  on  every  ;| 
day  of  the  same,  (Sundays  and  fourth 
of  July   ezccpted,)    from   Sept.    1st,  • 
ItSSrf,  to  Jan'y  1st,  1840."  id 

16.  In  general,  where  a  bill  of  particu- 
lars furnished  under  an  order  is  insuf- 
ficient, the  party  should  apply  to  a 
judge  at  chambers  fur  a  further  order ; 
and  if  a  second  insufficient  bill  bo  de- 
livered, the  party  may  then  apply  to 
the  court.  id 

17.  But  if  the  first  bill  be  so  clearly  eva- 
sive  and    unsatisfactory    as  to  show 
that  the  party  delivering  it  <!id  not  in- 
tend to  comply  with  the  judge's  order, 
the  opposite  party  may  then  move  the 
court  at  once,  without  obtaining  a  se- 
cond order  at  chambers.  id 

18.  Where  judgment  as  in  case  of  non- 
suit for  not  noticing  a  cause  for  hear- 


ing before  frfsnMB  »  set  aside  03  p«T. 
merit  of  costs,  the  plaintiff  most  notwc 
the  cause  for  hearing  isa 
if  he  fail  to  do  so,  the  < 
enter  his  default  and  [ 
judgment,  without  serving  a  new  no- 
tice under  the  44th  rule.  Reynolds  r. 
Fountain,  adm'r,  £e.  52 

!  19.  If  the  plaintiff  need  one  to  bring  on 
the  hearing,  he  should  ask  it  when  the 
motion  to  set  aside  the  judgment  is 
made,  and  have  the  allowance  insert, 
ed  in  the  urd.  r.  id 


fault  for  not  pleading  is  set  aside.  If 
the  defendant  do  not  plead  immediate- 
ly, another  default  may  be  entered 
without  giving  a  new  notice  or  enter, 
ing  a  new  rule.  Per  BanNsn*.  J.  id 

21.  A  demurrer  to  a  declaration  cannot 
be  treated  as  a  nullity  on  the  met* 
ground  that  it  is  frivolous,  or  will  work 
delay.     Anonymout,  56 

22.  In  order  to  justify  the  plaintiff  in 
disregarding  the  demurrer  and  enter. 
ing   the    defendant's   default   for  not 
pleading,  it  roust  appear  that  a  fraud 
was  attempted   upon   the  rale*  and 
practice  of  the   court.      Per  Baox- 

80N,  J.  •• 


23.  Though  in  an  action  of 
against  several  defendants, 
cod  by  declaration  in  the 
court  of  the  city  of  Buffalo,  one  of 
thorn  reside  out  <>f  tii«-  jurisdiction  of 
the  court  and  be  nut  nerved  with  the 
declaration,  the  plaintiff*  cannot  treat 
the  suit  as  a  mere  nullity.  Wktte 
and  other*  v.  Smith  and  other t,  166 


24.  A   suit  baring  been 

and  an  attorney  employed  for  the  de- 
fendants, the  plaintiff,  before  receiv. 
ing  notice  of  retainer,  ontwed  a  rale 
to  discontinue  and  omiunenced  •  se- 
cond suit  against  the  defendants  far 
the  same  cause;  to  which  UK-V  plead- 
ed the  pendency  of  the  fin*  suit  to 
abatement:  Held,  that  the  plaintiff 
having  omitted  to  pay  the  costs  of  the 
first  suit,  the  rule  for  dismatinsjsjaeo 
was  a  nullity,  and  formed  no  newer 
to  the  plea. 

25.  Had  the  plaintiff,  on  recerring  the 
plea  in  abatement  and  befors  replying. 


7QQ  INDEX. 

paid  the  costs  of  the  first  suit,  the 
payment  would  have  related  back  to 
the  time  the  rule  for  discontinuance 
was  entered,  and  thus  rendered  it  ef- 
fectual. Per  BRONSON,  J.  id 

.€.  Though  the  rule  entered  in  such 
case  be,  that  the  plaintiff  have  leave 
to  discontinue  without  costs,  it  will 
not  avail  him  unless  the  costs  be  paid. 

id 

27.  In  an  action  of  debt  on  bond,  the  de- 
fendant moved  for  a  commission  to 
examine  witnesses,  with  a  stay  of 
proceedings  until  its  return,  on  an  affi- 
davit that  he  had  "  a  good  and  substan- 
tial defence  to  the  bond"  &c. :  Held, 
that  the  affidavit  was  defective  in  not 
stating  a  defence  on  the  merits ;  and 
a  stay  of  proceedings  was,  for  this 
reason,  denied.  Meech  v.  Calkins 
and  others,  534 

J8.  In  verifying  a  plea  in  bar  concluding 
to  the  country  under  the  1st  rule  of 
May  term,  1840,  an  allegation  that 
the  defendant  has  "  a  full  and  sub- 
stantial defence"  &c.  is  not  sufficient ; 
the  affidavit  should  be  that  the  defen- 
dant has  "  a  good  and  substantial  de- 
fence" &,c.,  in  the  language  prescrib- 
ed by  the  rule.  The  Batik  of  Utica 
v.  Root  and  others,  535 


29.  An  affidavit  on  which  to  move  for 
a  reference,  must,  in  general,  be  made 
by  the  party,  and  not  by  the  attorney. 
Wood  v.  Crowner,  548 

30.  Otherwise,  if  a  sufficient  excuse  ap- 
pear for  dispensing  with  the  affidavit 
of  the  party.     Semble.  id 

31 .  Where  a  replication  was  filed  and 
served,  to  which  the   defendant  inter- 
posed a  rejoinder  ;  held,  that  the  plain- 
tiff had  no  right  to  file  and  serve  an 
amended  replication   of  course,    and 
that,  having  done   so,  the   defendant 
might  treat  it  as  a  nullity.     Cowles  v. 
Coster,  550 

32.  If  an  order  of  a  judge  or  commission- 
er be  revoked  by  him,  a  subsequent 
application  to  another  commissioner, 
hi  reference  to  the  same  matter,  and 
in  the  same  stage  of  the  proceedings, 
is  irregular ;  for  a  revocation  is  in 
effect  the  same  thing  as  an  original 
refusal.     Gould  and  others  v.   Root 
and  others,  554 


33.  The  order  of  a  judge  or  commission- 
er cannot  be  treated  as  a  nullity  on 
the   mere  ground  of  its  having  been 
improperly  or  even  fraudulently  ob- 
tained ;  the   remedy  of  the  party  in 
such  case  being  by  appeal,  motion  to 
supersede,  application  to  revoke  &c. 

id 

34.  After  notice  of  hearing  before  ref- 
erees had  been  given  by  the  plaintiff, 
the  defendant  obtained  an  order  stay- 
ing proceedings  till   a   motion    for  a 
commission   could  be  made  to  a  cir- 
cuit judge  ;  the  motion  being  noticed 
for  a  day  subsequent  to  that  appointed 
for  the  hearing.     The  order  v.-as  af. 
terwards   revoked    on   the    plaintiff's 
application,  and  notice  thereof  given 
to    the     defendant's    attorney,    who 
thereupon  applied  to  a    commissioner 
residing   in  another   county   und  ob- 
tained an  order  staying  proceedings 
for  the  purpose  of  moving  the  court  t>> 
set  aside  the  order  of  revocation.   The 
plaintiff's  attorney  treated  the  com- 
missioner's order  as  a  nullity,  proceed- 
ed to  a  hearing  of  the  cause,  and  ob- 
tained a  report  in  his  favor.     Held, 
on  the  defendant's  motion  to  set  aside 
the  report,  that  though  the  order  of 
the  commissioner  was  irregular,  the 
plaintiff  had  no  right  to  treat  it  as  a 
nullity ;  and  the  motion  was  therefore 
granted,  but  without  costs.  id 


35.  In  order  to  warrant   this   court  in 
granting  a  rule  against  a  person,  the 
disobedience  to  which   would   be   a 
contempt,  he  must  not  only  be  an  offi- 
cer of  the  court  or  a  party  to  a  suit  or 
proceeding  therein,  but  he  must  be  so 
in   respect  to    the  particular  wrong 
which  he  is  ordered  by  the  rule  to  re- 
pair.     Per   COWEN,   J.      Ex  parte 
Ketchum,  public  adm'r  of  the  city  of 
New-York,  564 

36.  In  general,  there  can  be  but  one 
judgment  record  in  the  same  cause. 
Webb  v.  Bulger  and  Bulger,         588 

37.  Where,  however,  in  an  action  of  as- 
sault and  battery  against  two  defen- 
dants, a  verdict  was  rendered  in  favor 
of  one  and  against  the  other,  where- 
upon the  latter  made  a  bill  of  excep- 
tions, and  the  former  perfected  judg- 
ment for  his  costs,  the  court  permitted 
the  judgment  to  stand  on  condition 
that  the  costs  of  enteringit  up  should  be 
deducted,  though  the  cause  was  still 
pending  on  the  bill  of  exceptions,    id 


86.  An  affidavit  of  service  of  paper*  on 
a  deputy  of  one  of  the  clerks  of  thin 
court,  in  the  clerk's  office,  is  good, 
without  adding  that  the  clerk  was 
absent.  Anonymout,  597 

39.  So,  nf  an  affidavit  stating  service  on 
a  clerk  of  one  of  the   clerk"  of  th  • 
court,  in  his  office.     Note  (a.)         id 

40.  Where  the  papers  for  a  motion  are 
properly  entitled,  an  affidavit  of  ser- 
vice   immediately   following,   or  en- 
dorscd  upon  them,  though  not  itself 
entitled,  is  sufficient.  Anonymous,  597 

See  AFFIDAVIT  OF  MERITS. 

ARBITRATION  AND  AWARD. 

ATTACHMENT. 

ATTOR.NEV. 

BANKRUPT  ACT,  3. 

BILL  OF  EXCEPTIONS,  2. 

BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  1  to  4,  30. 

BOND. 

COMMISSION  TO  TAKE  TESTIMONY. 

COSTS. 

DEBTORS,  ABSCONDING,  CONCEALED 
AND  NON-RESIDENT,  I  to  4,  10. 

EJECTMENT,  6. 

EXECUTORS  AND  ADMINISTRATORS, 
1,  2,  3,  8. 

INJUNCTION,  1  to  4. 

JUDGMENTS  AND  EXECUTIONS,  1,  4 
to  15,  17,  18. 

MANDAMUS. 

NEW  TRIAL. 

OFFICE  AND  OFFICER,  2,  S. 

REPLEVIN. 

SET-OFF. 

SPECIAL  VERDICT. 

USURY,  1,  2,  17  to  19. 

VENUE. 

WITNESS,  1  to  6. 


PRACTICE  AT  THE  TRIAL. 

1.  If  a  witness  who  has  been  duly  sub- 
poenaed, either  neglect  to  attend,  or 
leave  court  after  the  trial  has  com- 
menced, it  is  in  the  dtfcrction  of  the 
judge  whether  he   will  suspend  the 
trial  until  the  witness  can  be  brough 
in.    Rapelye  $  Purdy  v.  Prince  4 
Prince,  119 

2.  The  rule  that  a  plaintiff  who  proves 
all  that  is  laid  in  his  declaration  ought 
not  to  bo  nonsuited  even  though  he 
fail  to  make  out  a  cause  of  action,  ap- 
plies only  to  cases  where  the  declare- 


INDEX.  70 1 

two  to  so  defective  that  a  Terdiet  far 
the  plaintiff  on  any  put  of  it  eeold 
nut  be  sustained.  IhmUf.  B»yd 
4/  Boyd  v.  Towntfnd  nd  otktri,  1 83 

3.  Where  issue  wee  taken  upon  a  dees*, 
ration  alleging    matters  sufficient  to 
make  out  a  right  of  action,  along  with 
others  wholly  inrofficirnt,  end,  at  the 
trial,  the  plaintiff  failed  in  -^-^fif 
that  part  of  hw  declaration  which  wee 
good ;  ktld,  though  be  proved  ail  the 
rcM,  he  rhould  be  nonsuited.  i-t 

4.  After  the  plaintiff  has  rested   his 
cause,  it  is  in  the  discretion  of  the 
court  whether  he  shall  be  allowed  to 
give  f uiiher  evidence  save  in  reply. 
Hhepard  v.  Poller,  J&2 

5.  What  shall  be  deemed  evidence  in 
reply,  under  such  circumstances,  eon. 
sidered.  id 

G.  The  plaintiff,  on  the  trial  of  a  cause, 
having  announced  his  intcntioa  of 
itfting,  the  defendant  moved  for  a 
nonsuit ;  whereupon  the  court  re-call, 
ed  and  interrogated  a  witness  of  the 
plaintiff,  and  thus  drew  out  a  new 
fact  tending  against  the  latter  on  the 
leading  point  in  dispute.  Held,  that 
the  court  were  bound  to  hear  further 
testimony  on  the  part  of  the  plaintiff 
in  reply," and  that,  for  their  refusal  to 
do  so,  error  would  lie.  id 


7.  Whether  a  plaintiff  thell  be  allowed 
to  depart  from  the  case  fir**  rstabHeh. 
ed  by  him,  but  which  be  baa  faded  to 
sustain,  and  prove  a  new  and  incom- 
patible one,  is  matter  resting  in  the 
discretion  of  the  court  at  the  uial, 
upon  which  error  will  not  lie.  fist 
note  .a)  id 


Set 


BILL  OF  EXCEPTIONS,  3. 
BILLS  OF  Ex  CHANGE  AND  PROMIS- 
SORY NOTES,  1  to  4,  30. 

C'llAKCUY,   8. 

EMUE.NCK,  3,  7,  16. 
FRAUDULENT  SALE  or  CILITTELS. 
,  C. 


USURY,  19. 
WITNESS,  8. 


PRACTICE  IN  CHANCERY. 

See  CHANCERY,  1  to  7.  9. 


702 


INDEX. 


PRECEDENT,  JUDICIAL. 

See  COURT  OF  ERRORS. 


PRESUMPTION  AND  PRESUMP- 
TIVE EVIDENCE. 

See  BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  28,  29. 

CONSTITUTIONAL  LAW,  10. 

CORPORATION,  9  to  14, 17  to  19, 22, 
23. 

EJECTMENT. 

EVIDENCE,  17,  18. 

FRAUDULENT  SALE  OF  CHATTELS. 

INFANCY. 

LANDLORD  AND  TENANT,  3. 

OFFICE  AND  OFFICER,  7. 


PRINCIPAL  AND  AGENT. 

See    ATTORNEY. 

BANKS   AND   BANKING    ASSOCIA- 
TIONS, 1. 
DEED,  3  to  8. 
PRINCIPAL  AND  SURETY,  1. 


PRINCIPAL  AND  SURETY. 

1  A  mere  surety  for  a  debt  will  not  be 
bound  by  a  decree  or  judgment  pro- 
nounced in  a  suit  between  his  princi- 
pal and  the  creditor,  even  though  the 
suit  was  conducted,  on  the  part  of 
the  principal,  exclusively  by  the  sure- 
ty as  his  agent.  Jackson,  appellant 
v.  Griswold,  respondent,  525 

2.  Otherwise,  semble,  if  the  surety  vol 
untarily  came  in  and  litigated  as  such 
in  the  name  of  his  principal,  with  tin 
assent  of  the  creditor.  id 


3.  If,  in  a  suit  between  the  creditor  an< 
the  principal,  a  decree  or  judgmen 
be  pronounced  against  the  validity  o: 
the  debt,  this  will  operate  to  discharg 
the  surety,  and  consequently  may  b 
used  as  evidence  in  his  favor.  Pe 

COWEN,  J. 


4.  Several  instances  adverted  to 
which  a  person,  though  not  named  a 
a  party  in  a  suit,  may  nevertheless  b 
concluded  by  the  judgment  rendere 
therein.  Per  COWEK,  J. 


.  The  cases  of  Douglass  v.  Hoioland, 
(24  Wend.  35,)  Willey  v.  Paulk,  (6 
Conn.  R.  74,)  and  Ue  Forest  v. 
Strong,  (8  id.  513,)  commented  on 
and  explained.  Per  COWEN,  J.  id 

,  Though  a  creditor  neglect  to  prose- 
cute for  his  debt  after  being  notified 
to  do  so  by  the  surety,  this  will  not 
discharge  the  surety  if  the  principal 
was  insolvent  at  the  time.  Herrick 
v.  Borst  and  Warnick,  650 

.  Otherwise,  if  the  principal  be  solvent 
at  the  time,  and  the  neglect  to  prose- 
cute is  followed  by  subsequent  insol- 
vency on  his  part.  Per  COWEN,  J.  id 

.  A  surety,  however,  in  wder  to  avail 
himself  of  this  rule  at  law,  must  bring 
his  case  strictly  within  it.  Semble; 
per  COWEN,  J.  id 

9.  The  cases  of  Pain  v.  Packard,  (13 
John.  Rep.  174,)  and  King  v.  Bald- 
win, (17  id.  384,)  commented  on  and 
disapproved.  Per  COWEN,  J.  id 

LO.  Semble,  that  the  principal  is  not  to 
be  deemed  solvent  at  the  time  of  the 
notice  to  prosecute,  unless  he  be  then 
able  to  pay  all  his  debts  according  to 
the  ordinary  usage  of  trade.  Per 
COWEN,  J.  id 

11.  Where   the   circuit  judge  charged 
that  the  term  solvent,  in  such  case, 
meant  that  the  principal  was  able  to 
pay  all  his  debts  from  his  own  means, 
or  that  his  property  was  so  situated 
that  all  his  debts  might  have  been 
collected  out  of  it  by  legal  process : 
Held,  that  the  charge  was  sufficient- 
ly favorable  to  the  surety,  and  a  mo- 
tion for  a  new  trial  made  in  his  behalf 
was  therefore  denied.  id 

12.  Held   further,   that  mere  probable 
solvency  of  the  principal  in  reference 
to  the  debt  in  question,  at  the  time  of 
giving  notice  to  prosecute,  would  not 
bring  the  case  within  the  rule.         id 

13.  The  meaning  of  the  terms  solvent 
and  insolvent,  as  applied  to  various 
other   cases,   discussed.      Per  Cow 
EN,  J.  id 

See  ASSUMPSIT,  3. 

BILLS  OF  EXCHANGE  AND  PBOMIS 

SORT  NOTES,  8  to  13. 
BOND. 


INDEX. 


703 


:»TATUT«  o». 
GuARAinr. 


PRIVATE  ROADS. 
See  ROADS  AND  HIGHWAYS,  1. 

PRIVILEGE  FROM  ARREST. 
See  WITNESS,  1  to  4. 


PRIVILEGE  FROM  TESTIFY- 
ING. 

See  WITNESS,  7. 


PRODUCTION  OF  PAPERS. 

See  CHANCERY. 

EVIDENCE,  17,  18. 


"PROFITS"  AND  "INCOME." 
See  TAXES  AND  ASSESSMENTS. 

PROMISE. 

See  ASSUMHIT. 

BILLS  OF  EXCHANGE  AND  PROMISSO- 
RY NOTES,  11  to  13. 

EVIDENCE,  17,  18. 

EXECUTORS  A.NP  ADMINISTRATORS, 
3,  6  to  8. 

FRAUDS,  STATUTE  OF. 

GUARANTY. 

INFANCY. 

INSURANCE,  7  to  11. 

JUDGMENTS  AND  EXECUTIONS,  10, 11. 

PROMISSORY  NOTES. 

Set  ASSIGNOR  AND  ASSIGNEE,  3. 

BANKS  AND  BANKING  ASSOCIATIONS. 
BILLS  OF  EXCHANGE  AXD  PROUISSO- 

RY  NOTES. 

EVIDENCE,  12,  13,  17,  18. 
EXECUTORS  AND  ADMINISTRATORS,  3, 

6  to  8. 

PARTNERSHIP. 
PAYMENT. 
PLEADING. 
PRACTICE,  1,  9,  14. 


PURCHASE!." 


QUIET  ENJOYMENT. 
See  AssuMTsrr,  1,  9,  4. 


COVENANT,  10. 


K 


RAIL-ROAD  COMPANY. 
Set  TAXES  AND  ASSESSMENTS,  6. 

RATIFICATION. 

See  INFANCY. 

LVSURANCE,  5,  6. 

RECEIPT. 

See  BAILMENT. 

COVENANT,  14  to  16. 
EVIDENCE,  1  to  7. 

RECITAL. 
See  CORPORATION,  11. 

REDEMPHON  OF  LANDS. 

1.  To  entitle  a  judgment  creditor  t»  re. 
deem  land*  from  a  purchaser  at  a 
sheriff's  sale,  the  judgment  in  virtue 
of  which  the  right  of  redeeming  a 
claimed  must  be  againrt  the  dtfr*. 
dant  in  tke  writ  under  which  the  wlo 
look  place,  and  murt  aJ«>  be  a  Itt*  ra 
tkt  lands  sold.  Ex  fartt  Wood  »md 
otkert,  549 

9.  Judgments  having  been  ofctained 
K  against  R.  which  were  a  lien  on  hit 
land,  he  conveyed  to  P. ;  after  which 
executions  were  issued,  and  Uw  lands 
sold  by  the  sheriff  to  W.  P.  thai 
conveyed  to  &,  against  whom  and  R. 
a  judgment  was  obUincd  by  M.  with- 
in  ftltosn  Booths  from  UM  •Unff'i 


704 


INDEX. 


sale,  and  M.  claimed  the  right  to  re. 
deem  on  paying  the  amount  of  W.'s 
bid,  together  with  interest.  Held, 
however,  that  he  was  not  entitled  to 
redeem.  id 

3.  A  person    under   whose    execution 
lands  have  been  sold  is  not  authorized 
to  redeem  in  virtue  of  the  judgment 
(on  which  the  execution  issued,  either 
from  the  purchaser  or  a  creditor ;  and 
this,  though  no  part  of  the  proceeds 
of  the  sale  were  realized  upon  his  exe- 
cution, but  were  wholly  exhausted  by 
other    and    prior    executions     under 
which  the  property  was  sold  at  the 
same  time.     Ex  parte  Paddock,  544 

4.  Where,   after  one   creditor  had  re- 
deemed lands  sold  under  a  fi.  fa.,  a 
second  creditor,   with  a  view  of  re- 
deeming from  the  first,  paid  uncon- 
ditionally to  the  sheriff  the  requisite 
amount,   but  immediately  thereafter 
served  an  injunction  in  his  own  favor 
restraining  the  sheriff  from  paying  it 
over ;  held,  nevertheless,  that  he  was 
entitled   to   the   sheriff's   deed.     Ex 
•narte  Newell  receiver,  fyc.  589 

5.  Where   a  junior    creditor    complied 
with  the  requisites  for  redeeming  from 
the    purchaser    by    reimbursing    the 
amount  of  the  bid,  &c.,  and,  on  the 
same  day,  a  senior  creditor  who  had 
previously  become    assignee    of  the 
original  certificate  of  sale,  presented 
to  the  sheriff  the  proper  evidence  of 
that  fact  and  of  his  right  as  creditor ; 
held,  that  he  was  entitled  to  the  sher. 
iff 's  deed  without  paying  any  money. 
Ex  parte  Newell,  receiver,  $c.     698 

6.  The  affidavit  of  a  redeeming  cred- 
itor as  to  the  amount  due  on  his  judg- 
ment, though  made  five  days  before 
presenting  the  papers  to  the  sheriff,  is 
sufficient.  id 


7.  Where  such  creditor  is  an  assignee 
of  the  judgrftent  in  virtue  of  which  he 
seeks  to  redeem,  though  the  statute  in 
terms  requires  him  to  present  to  the 
sheriff  a  copy  of  his  assignment  &c., 
(2  R.  S.  373,  §  6,  gubd.  2,)  it  is  suffi- 
cient if  the   original   be  presented. 
Semble.  id 

8.  An  acknowledgment  of  the  assign- 
ment, certified  by  an  officer  authorized 
to  take  acknowledgments  of  deeds,  is 


not  a  sufficient  verification  of  it  for  the 
purpose  of  redeeming.  id 

9.  Where  a  copy  of  an  assignment  was 
verified  by  affidavit  as  follows :  "  This 
deponent  is  the  assignee  and  owner, 
according  to  the  annexed  copy  of  the 
transfer  thereof  by  &c.,  [naming  the 
assignor,]  in  good  faith,  of  the  said 
judgment ;"  held,  a  sufficient  verifica- 
tion, though  unskilfully  drawn.        id 

10.  Where,  for  the  purpose  of  redeeming 
land  sold  on  execution,  a  judgment 
creditor  paid  to  the  sheriff  certain  for- 
eign coin,  which  was  received  by  him 
at  its  current  value  without  objection, 
but  which  turned  out  to  be  legally 
worth  a  few  cents  less ;  yet  held,  a 
valid  payment.  Ex  parte  Becker,  613 

11.  So,  where  the  payment  was  made 
partly  in  current  foreign  coin  which 
was  not  a  legal  tender.  id 


RELATION  OF  DECREE. 

See  BANKRUPT  ACT,  1, 2. 
DEED,  1,  2 


RELEASE. 

See  LIEN,  4  to  6. 

WITNESS,  5,  6. 


RELEVANCY  OF  EVIDENCE. 

See  FRAUDULENT  SALE  OP  CHATTELS,  5 
to  14. 


RENEWAL  OF  PROCESS. 

See  COMMON  SCHOOLS,  2. 

RENT. 
See  LANDLORD  AND  TENANT,  1  to  6. 

REPEAL. 

See  COMMON  SCHOOLS,  1,  2. 
NON-IMPRISONMENT  ACT,  2. 
STATUTES,  5. 


INDEX. 


REPLEVIN. 


705 


1.  A  summons  in  replevin  need  not  spe- 
cify the  property  sought  to  be  recov- 
ered ;  and  if  it  do  so,  that  part  of  it 
may  be  rejected  as  surplusage.     Fine. 
kout  v.  Grain,  theriff  fc.,  537  ] 

2.  Where,  in  replevin,  several   articles 
of  property   were    described    in    the 
writ,  but,  in  consequence  of  directions 
given  by  the  plaintiff,  a  part  of  them 
only  was  seized  by  the  officer ;  htltl, 
that  the  plaintiff  might  nevertheless 
include  the  whole  in  his  declaration, 
and  this,  though  the  summons  served 
described  the  articles  seized ,  without 
mentioning  the  residue.  id 

3.  Where  the  plaintiff  intended  to  bring 
replevin  in  the   detinct,  but,  by  mis- 
take of  his  attorney,  the  charge  of  de- 
taining was  preceded  in  the  writ  by 
words  imputing    an  unlawful  taking 
also,  he  was  allowed   to  amend   on 
terms  by  striking  out  those  words, 
even  after  the  writ  had  been  execut- 
ed.   Anonymous,  603 

Set  MORTGAGE  OF  CIUTTKLS,  2,  3. 
PRACTICE,  3. 


REPLICATION. 

See  PRACTICE,  31. 


REPLICATION  OF  NEW 
PROMISE. 

See  INFANCY. 


REPRESENTATION. 
See  INSURANCE,  7  to  12. 

RESCINDING  CONTRACT. 
See  DAMAGES.  5. 

RES  INTER  ALIOS  ACTA. 

See  EJECTMENT,  5  to  7. 
EVIDENCE,  8  to  11. 
FRAUDULENT  SALE  or  CHATTELS,  9. 

VOL.  IV.  89 


Sei   JCDGMENTS  AND  ExECCTlOW,  16. 

MORTGAGE  or  LAND*,  1  to  3. 
PRINCIPAL  AMD  Scarrt,  1  to  S 


RESISTING  AN  OFFICER 
See  JoDOMBirra  AND  EXECUTIONS,  4  to  9 


RES  JUDICATA. 

See  CoRroKATio.s,  14. 

DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESII>*..\T,  11. 
EVIDENCE,  8  to  11. 
MORTGAGE  or  LANDS,  1  to  3. 
No.\. IMPRISONMENT  ACT.  4. 
PRINCIPAL  AND  SL-RETT,  1  to  5. 


RETAINER. 
See  ATTORNEY. 

RETURN. 

See  ATTACHMENT. 

JUDGMENTS  AND   EXECUTIONS,   14, 
15, 17  to  19. 

REVOKING  ORDER. 

See  PRACTICE,  32  to  34. 
VENI-E,  9,  10. 

RIPARIAN  OWNER. 
See  RIVERS  AND  CREEKS. 

RIVERS  AND  CREEKS. 


1.  Where,  in  the 


TT  uurc.     III     UJQ    VUUTvyi 

situated  in  the  city  of 


hi 

J * 

was  described  as  a  null  be,  bofiminf 

otc.,  and  running  "  eastwardry  to  4U 
Gene  fee  rivtr;  thence  northwardly 
aloitgr  thtthore  uf  tatd  river  to  Bii/isto. 
street"  Aic.  :  IlrLD,  that  oo  part  of 
the  bed  of  the  river  pasted  un 
conveyance,  but  thai  the  grantee  toot 


706  INDEX. 

only  to  lowwater-mark.     Child  and 
others  v.  Starr  and  others,  369 


2.  BOCKEE,  senator,  dissented,  holding 
that  the  words  "  to  the  Genesee  river" 
extended  the  grantee's  right  usque 
filum  aqua ;  and  that  the  words 
"  along  the  shore"  &c.,  should  be  con- 
strued as  meaning,  along  the  centre 
of  the  river  in  the  general  direction  of 
the  shore.  id 


3.  Semble,  the  case  of  The  Commission- 
ers of  the  Canal  Fund  v.  Kempshall, 
(26  Wend.  404,)  has  settled  that,  in 
this  state,  as  in  England,  a  grant  of 
land  bounded  generally  on  a  naviga- 
ble fresh  water  river,  extends  the  right 
of  the  grantee  to  the  centre  or  thread 
of  the  river.  Per  WALWORTH,  chan- 
cellor ;  sed  quaere,  per  BRADISH,  presi- 
dent, id 


4.  Otherwise,  however,  if  the  bank,  shore 
or  margin  of  the  river  be  designated 
as  the  boundary,  or  the  line  be  describ- 
ed as  running  along  the  bank  &c. 
Per  WALWORTH,  chancellor.  id 


5.  The  like  rule  applies  to  grants  of 
land   bounded    on  highways,   party- 
walls,  &c.    Per  WALWORTH,  chancel- 
lor, and  BRADISH,  president.  id 

6.  It  makes  no  difference,  in  the  appli- 
cation of  the  rule,  whether  the  grant 
relate  to  a  city-lot,    or  to   a  larger 
tract  of  land  in  the   country.    Per 
BOCKEE,  senator.  id 


7.  A  river  in  which  the  tide  does  not 
ebb  and  flow  has  no  shores,  in  the 
technical   sense    of  that  term;   but, 
when  applied  to  such  river,  it  means 
those   portions   of  the   banks    which 
touch   the   margin    or    edges   of  the 
stream   at  low    water.      Per   WAL- 
WORTH,   chancellor,    and     BRADISH, 
president.  id 

8.  A  boundary  upon  the  shore  is  liable 
to  variation  from   alluvial   increment, 
the  attrition  of  the  waters,  &c.     Per 
WALWORTH,  chancellor.  id 


8.  The  bed  of  a  private  river  cannot  pass 
as  incident  or  appurtenant  to  a  grant. 
Per  BRADISH,  president.  *  id 


ROADS  AND  HIGHWAYS. 

1.  The  statute  (1   R.  S.  513,  §   77  el 
seq.)  authorizing  a  private  road  to  be 
laid  out  over  the  lands  of  a  person, 
without  his  consent,  is  unconstitutional 
and  void.     NELSON,  Ch.  J.  dissented. 
Taylor  v.  Porter  and  Ford,  140 

2.  Where  a  road    district   was   formed 
from  parts  of  two  districts,  and  was 
afterwards  ordered  to  be  discontinued 
by  the  commissioners  of  highways ; 
held,  that  the  order  was  valid,  though 
it  did   not  expressly  provide  for  em- 
bracing the  territory  to  which  it  relat- 
ed within  any  other  road  district,  the 
effect  being  to  restore  the  two  dis- 
tricts to  their  original  limits.      The 
People    ex  rel.  Seward  v.  Sly  and 
others,  593 


3.  Whether,   in   a   civil   action  against 
commissioners  of  highways   for  non- 
repair of  bridges  &c.,  the  declaration 
must  aver  that  the  defendants  had 
funds,   quere.    Adsit    and  others  v. 
Brady,  630 

4.  The   cases  of  Bartlett  v.   Crazier, 
(17  John.  Rep.  439,)  The  People  v. 
The  Commissioners  tyc.    of  Hudson, 
(1  Wend.  474,)    and  The  People  v. 
Adsit,  (2  Hill,  619,)  commented  on. 

id 

See  RIVERS  AND  CREEKS,  5. 


SALE  OF  CHATTELS. 


See  BAILMENT. 

CONTRACT,  6  to  8. 

DAMAGES. 

EVIDENCE,  1  to  7. 

EXECUTORS  AND  ADMLVISTRATORS, 

4  to  7. 

FRAUDULENT  SALE  or  CHATTELS. 
JUDGMENTS  AND  EXECUTIONS,  2,  3. 
USURY,  12  to  16. 


SALE  OF  CREDIT. 
See  USURY,  5  to  10. 


INDEX. 


SATISFACTION  OF  JUDGMENT 

See  JUDGMENTS  AND   ExEotmo.is 
13  to  19. 


SCHOOL  DISTRICT. 
See  COMMON  SCHOOLS. 

SCHOOLS. 
See  COMMON  SCHOOLS. 

SCIRE  FACIAS. 

See   JUDGMENTS  AND  EXECUTIONS,    14 
15,  19. 

SEAL. 
See  DEED,  3  to  8. 

SENTENCE. 
See  INJUNCTION,  5. 

SERVICE  BY  MAIL. 

See  BILLS  or  EXCHANGE  AND  PROMJSSO 
RT  NOTES,  6. 


SERVICE  ON  CLERK  OR 
DEPUTY. 

See  PRACTICE,  38  to  40. 


SET-OFF. 

1.  If  A.  recover  judgment  against  C., 
and  the  latter  obtain  judgment  against 
A.  and  B.,  a  net-off  may  bo  ordered 
on  the  application  of  A.,  notwithstan- 
ding the  objection  that  the  parties  to 
both  records  are  not  identical.    Per 
COWE$,  J.     Graces  v.  Woodhury,  559 

2.  The  order  will  be  made  though  it  ap- 
pear that  the  judgment  in  C.'s  favor 
has  been  assigned  to  a  third  person,  for 
a  valuable  consideration,  and  without 


707 

notice  of  the  exutenee  of  the  other 
judgment.    Per  COWBH,  J.  id 

3.  Otherwise,  however,  if  the  right  of 
set-off  did  not  ex*  at  the  time  uf  OM 
assignment.  id 

4.  Accordingly,    A.   having  ioun«fsd 
judgment  again*  C.,  a  suit  was  com- 
menced by  A.  and  B.  •gainst  C'., 
which  was  referred;  and,  a  snort  tine 
before  the  making  of  the  referee's  re- 
port, which  found  a  large  balance  doe 
to  C.,  but  after  the  referee  had  bears! 
the   matter   and  C.  bad 

what  the  report  would  be,  be  i 
the  demand  to  D.  for  a 
mderation,  and  judgment  was  duly 
perfected  upon  the  report :  HtU,  that 
A.  was  not  entitled  to  a  set-off,  OMB. 
much  as  no  such  right  existed  when 
the  assignment  was  made ;  the  jodg- 
munt  in  C.'s  favor  having  been  perfec- 
ted afterwards.  id 

Set  Last. 


SETTING  ASIDE  PROCEED- 
INGS. 

See  PRACTICE,  6,  7,  18  to  20,  32  to  34, 
36,37. 


SEVERANCE. 

See  BILL*  or  EXCHANGE  AND  PROMIS- 
SORY NOTES,  3,  4,  30. 
PRACTICE,  1,  2. 


SHERIFF. 

See  ATTACHMENT. 
BOND,  3  to  7. 
DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  5,  6. 
JUDGMENTS  AND  KXCCITIONB,  1,  4 

to  9,  14,  15,  17  to  19. 
MORTGAGE  or  CHATTELS. 
REDEMPTION  or  LANDS. 


SHERIFFS  BOND. 
St«  BOND,  3  to  7. 


708  mr>EX- 

"SOLVENT"  AND  "INSOL- 
VENT." 


See  PRINCIPAL  AND  SURETY,  6  to  13. 


SPECIAL  VERDICT. 

A  special  verdict  must  find  facts ;  not 
the  mere  evidence  of  facts.  Fuller  v. 
Van  Geesen,  171 


STATUTE  OF  FRAUDS. 

See  BILLS  OP  EXCHANGE  AND  PROMISSO- 
RY NOTES,  12. 
FRAUDS,  STATUTE  OF. 
GUARANTY. 


STATUTE  OF  LIMITATIONS. 

See  ATTACHMENT. 

LIMITATIONS,  STATUTE  OF. 
PRACTICE,  4,  5. 


STATUTES. 

1.  Every  statute  in  derogation  of  the 
rights  of  property,  or  that  takes  away 
the  estate  of  a  citizen,  ought  to  be 
construed  strictly.  Per  BRONSON,  J. 
Sharp  and  others  v.  Speir,  76 

8.  The  delegation  of  a  right  to  take  pri- 
vate property  without  the  owner's  con- 
sent, cannot  be  made  out  by  doubtful 
inferences  from  powers  relating  to 
other  subjects.  Nothing  short  of  ex- 
press words,  or  necessary  implication, 
will  answer  the  purpose.  Per  BRON- 
SON, J.  id 

3.  This  doctrine  applies  to  a  municipal 
corporation  claiming  the  right,  either 
by  taxation  or  otherwise,  to  divest  in- 
dividuals of    their  property   without 
their  consent.  id 

4.  When  lands  are  taken  under  a  stat- 
ute   authority,  in  derogation  of  the 
common  law,  every  requisite  of  the 
statute  having  the  semblance  of  bene- 
fit to  the  owner  must  be  strictly  com- 
plied with.     Id.  and  Sharp  v.  John, 
eon,  92 


5.  The  unqualified  repeal  of  a  repealing 
statute  revives  the  original  enactment. 
Per  BRONSON,  J.  Gale  v.  Mead  and 
others,  1U9 

See  BANKRUPT  ACT. 

BANES  AND  BANKING  ASSOCIATIONS. 

BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  1  to  4,  14.  15,  1H 
to  2 1,23,  29,  30. 

COMMISSION  TO  TAKE  TESTIMONY. 

CONSTITUTIONAL  LAW. 

CORPORATION,  4  to  31. 

COSTS,  2,  4,  7  to  16. 

COURT  MARTIAL. 

CRIMINAL  LAW. 

FRAUDS,  STATUTE  OF. 

FRAUDULENT  SALE  OF  CHATTELS. 

GUARANTY,  3. 

JUDGMENTS  AND  EXECUTIONS,  2,  3, 
12,  17  to  19. 

LANDLORD  AND  TENANT,  5,  6. 

LIEN. 

LIMITATIONS,  STATUTE  OF. 

MORTGAGE  OF  LANDS,  4,  5. 

NON-IMPRISONMENT  ACT. 

REDEMPTION  OF  LANDS. 

ROADS  AND  HIGHWAYS,  1, 2. 

USURY. 

WILL,  1,2. 

WITNESS,  7. 


STAYING  PROCEEDINGS. 

See  BOND,  1,  2. 

DEBTORS,  ABSCONDING,  CONCEALID 

AND  NON-RESIDENT,  2, 4. 
INJUNCTION,  3  to  5. 
PRACTICE,  27. 
USURY,  19. 
VENUE,  8  to  10. 


STREETS. 


See  CORPORATION,  17  to  30. 


SUBMISSION  TO  ARBITRA- 
TION. 

See  ARBITRATION  AND  AWARD. 


SUICIDE. 
See  INSURANCE,  1,  2. 


INDEX. 


709 


SUMMARY  PROCEEDINGS. 

See  ATTORNBT. 
COSTS,  8. 
NON.IMPRUONMENT  ACT. 


SUMMONS  IN  REPLEVIN. 

See  REPLEVIN,  1,  2. 


SUPERINTENDENTS  OF  THE 
POOR. 

1.  Superintendents  of  the  poor  arc  not 
bound  to  audit  the  accounts  of  physi- 
cians and  others  for  services  rendered 
to  county  paupers  by  request  of  the 
overseers  of  the   poor  of  the  several 
towns ;  and  this,  though  the  services 
were  rendered  in  pursuance  of  orders 
for  temporary  relief.     Ex  parte  Green 
$  Brown,  558 

2.  It  is  the  duty  of  the  overseers  to  ad- 
just such  accounts  and  charge  them 
in  their  bills  against  the  county.        id 

3.  The  employment  of  a  physician  by 
the  superintendents  of  the  poor  of  a 
county  does  not  supersede  the  right  of 
the  overseers  of  the  several  towns  to 
employ    other  physicians    to    attend 
county  paupers  entitled  to  temporary 
relief-     Semble;  per  Co  WEN,  J.        id 


SUPERVISOR. 
See  OFFICE  AND  OFFICER,  3. 

SURETY. 

See  ASSCMPSIT,  3. 

BILLS  OF  EXCHANGE  AND  PROMISSO- 
RY NOTES,  8  to  13. 
BOND. 
DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  1  to  4. 
FRAUDS,  STATUTE  OF. 
GUARANTY. 
PRINCIPAL  AND  SURETY. 


SURPRISE. 
See  NEW  TRIAL,  3  to  6. 


TAXATION  OF  COSTS. 
See  Com. 

TAXES  AND  ASSESSMENTS. 

1.  Associations  formed  rrder  tlic  gene- 
ral banking  law  are  c>rp<  ration* ;  and, 
like  other  moneyed  or  xiock  eurpon- 
tions  deriving  an  income  or  profit,  .-...• 
liable   to    taxation  on   ihcir   capital. 
The  People,  ex  ret.  <fo.,  v.  Tkt  Board 
of  Superoiton  of  tl>-   county  tj    Ni- 
agara, -'•) 

2.  In  ascertaining  the  mini  t»  bo  inserted 
in  the  assessment  roll,  no  n  ganl  should 
be  had  cither  to  accinmilutioosor  low. 
es  of  capital  in  the  courw  of  the  bust- 
ncas  of  the  company,  hut  only  to  the 
amount  of  capital  stork  |>a'd  in  and 
secured  to  be  paid,  after  deducting  ex- 
pcnditures  for  real  estate-,  and  with  of 
the  stock  as  the  statute  exempt*  from 
taxation.  :•/ 

3.  To  entitle  a  corporation  to  have   iU 
name  stricken  from  the  assessment  roll 
pursuant  to  I  R.  S.  416,  §  9,  the  am- 
davit  presented  to  the  board  of  super- 
visors must  show  that  the  company  n 
not  in  the  receipt  of  any  profits  <»r  in- 
come :  an  affidavit  showing  that  it  » 
not  in  the  receipt  of  any  net  profit*  or 
income  is  insufficient.  id 


4.  The  word  income  means  that  which  it 
received  from  any  business  or  invest- 
ment  of  capital,  without  reference  to 
outgoing  expenditures.      Per   BRON. 
SON,  J.  **> 

5.  Otherwise   as  to  the    term    profit*, 
which  generally  means  the  gain  made 
upon  any  business  or  investment  when 
both  receipts  and  payment*  are  taken 
into  the  account.  Per  BROKSON,  J.  id 

6.  Rail-road  companies  are  not   taxed 
upon  their  capital,  but  upon  the  valu- 
ation of  their  real  ettate  in  the  seve- 
ral towns  through  which  the  road  p**. 
4»»  sad,  temkU,  they  are  liable  to  be 
so  taxed,  though  not  in  the  receipt  of 
any  profits  or  income.     Per  BRON 

SO.N.J.  * 


710 

See  COMMON  SCHOOLS,  1,  2. 
CORPORATIONS,  4  to  30. 
STATUTES,  3. 


TENANT. 

See  EJECTMENT,  5  to  7. 

LANDLORD  AND  TENANT. 


TENANT  IN  COMMON. 

See  EJECTMENT,  2  to  4. 

JUDGMENTS  AND  EXECUTIONS. 


TOWNS  AND  COUNTIES. 

See  CONSTITUTIONAL  LAW,  12. 
OFFICE  AND  OFFICER,  2,  3. 
SUPERINTENDENTS  OF  THE  POOR, 


TRANSLATION. 
See  EVIDENCE,  14. 

TRESPASS. 

See  BOND,  6. 
CONTRACT,  1. 
JUDGMENTS  AND  EXECUTION*,  4  to  9 

TRESPASSER  AB  INITIO. 

See  BOND,  6. 

TROVER. 

.  To  maintain  trover  against  two  joint 
bailees,  a  demand  of  and  refusal  by 
one  is  not  sufficient ;  a  conversion  by 
both  must  be  shown.  Mitchell  v. 
Williams  $  Roberts,  13 

2.  In  the  case  of  partners  the  rule  is  dif- 
ferent ;  for  each  being  the  general 
agent  of  the  other,  a  refusal  by  one  is 
evidence  of  a  conversion  by  both.  Per 
COWEN,  J.  id 


INDEX. 


3.  W.  &  R.  having  hired  of  M.  a  numbe* 
of  cows  for  a  year,  the  former  (W.) 
took  possession  of  and  kept  them  on 
his  farm,  several  miles  distant  from  R.'s 
residence.  A  few  months  after  the 
hiring,  the  cows  wore  sold  under  an 
execution  against  W.,  issued  upon  a 
void  justice's  judgment.  At  the  ex- 
piration  of  the  year,  the  cows  being 
still  in  W.'s  possession,  M.  demanded 
them  of  him  and  he  refused  to  deliver 
them  up.  A  like  demand  was  made 
of  R.  at  his  residence,  who  said  "  he 
would  have  nothing  to  do  with  the  mat. 
ter,"  and  refused  to  go  and  see  W.  on 
the  subject.  Held,  in  trover  against 
W.  &  R.,  that  whether  enough  had 
_  been  shown  to  prove  a  conversion  by 
R.  was  a  question  of  fact  to  be  sub- 
mitted to  the  jury ;  and  the  circuit 
judge  having  directed  them  to  find  a 
conversion  by  both,  a  new  trial  was 
ordered.  id 


4.  If  R.'s  refusal  to  act  in  the  delivery  of 
the  cows  proceeded  from  an  honest 
desire  to  avoid  a  litigation  which  he 
supposed  might  arise  out  of  the  sale 
under  the  void  judgment,  he  was  not 
guilty  of  a  conversion.  Per  COW- 
EN,  J.  id 


5.  Otherwise,  if  his  refusal  to  act  pro- 
ceeded from  a  design  to  countenance 
or  aid  W.  in  unlawfully  withholding 
the  cows  from  M.,  or  to  embarrass  the 
latter  in  his  endeavor  to  obtain  posses- 
sion. Per  COWEN,  J.  id 


6.  In  general,  the  property  being  present, 
or  under  the  undisputed  control  of  the 
party  of  whom  it  is  demanded,  his 
mere  neglect  to  deliver,  without  say- 
ing a  word,  or  a  refusal  on  his  part  to 
point  out  the  property  and  act  in  the 
delivery,  will  be  prima  facie  evidence 
of  a  conversion.  Per  COWEN,  J.  id 


7.  Where  there  is  proof  of  a  positive  and 
unexcused  refusal  to  deliver  on  de- 
mand made,  the  judge  may  advise 
the  jury,  as  matter  of  law,  to  find 
a  conversion.  Per  COWEN,  J.  id 


TWO-THIRD  BILLS. 
See  CONSTITUTIONAL  LAW,  6  to  13. 


INDEX. 


u 


UNDER  TENANT. 

See  LANDLORD  AND  TENANT,  1  to  3. 


USAGE. 

See  BAILMENT. 

EVIDENCE,  1  to  7. 


USURY. 

1.  Where  a  defendant  interposes  a  plea 
or  notice  of  usury,  and  verifies  the 
same  pursuant  to  the  act  of  May  15th, 
1837,  (.Sess.  L.  of  '37,  p.  4W7,  $  2.) 
he  may  call  and  examine  the  plaintiff 
without    obtaining   an  order  of  the 
court  for  that  purpose.     Miller  v.  Jf  - 
Cagg  $•  Munger,  35 

2.  The  only  mode  of  procuring  the  at- 
tendance of  a  plaintiff  for  the  purpose 
of  examining  him  pursuant  to  the  usu- 
ry law  of  1837,  ( Sess.  L.  of  '37,  p.  487, 
§  2,)  is  by  serving  him  with  a  subpos- 
na  in  due  season,  and  paying  or  ten- 
dering him  the  fees  of  a  witness.     He 
is  not  bound  to  regard  a  mere  notice 
to  attend.  Rapeiye  $•  Purdy  v.  Prince 
$  Prince,  119 

3.  S.,  a  commission  merchant  in  the  city 
of  New- York,  agreed  to  accept  drafts 
of  N.  to  the  amount  of  $20,000,  taking 
a  bond   and  mortgage  from  him  for 
twice  that  KUIII  as  security  ;  and  it  wan 
further  agreed  that  all  produce  shipped 
to  New-York  by  N.  should  be  sent  to 
S.  for  sale  on  commission,  that  the 
latter  should  thus  bo  kept  in  funds  to 
mcrt  his  acceptances  as  they  became 
due,  and  that  lie  should  be  entitled  to 
two  and  a  half  per  cent,  commission 
on  all  advances  or  acceptances  met 
otherwise   than  with  produce.     N.'s 
drafts  were  afterwards  accepted  and 
paid  by  S.  to  an   amount  exceeding 
the  value  of  the  produce  consigned ; 
and  he  charged  N.  with  interest  on  all 
sums  thus  paid,   together  with   two 
and  a  half  per  cent,  commission  on 
acceptances  not   met  with  produce. 
Held,   in  an  action  by  S.  to  recover 
the  sum  advanced  upon  one  of  the 
drafts,  that  the  transaction  was  not 
necessarily  usurious ;  especially  as  it 


appeared  that  UM  charge  far 
SKA  was  customary  among  . 
engaged  in  similar  bosuns*.     Cow. 
EN,  J.  dissented.     S*yd*m  W  Mi*r« 


4.  Various  English  and  American  cases 
relating  to  usurious  loans  of  credit,  4tc. 
cited  and  commented  on.     Per  Cow. 

EN,J.  id 

5.  The  bonmjide  sale  of  one's  credit  by 
way    of   guaranty    or   endorsement, 
though  for  a  compensation  •»««Htmf 
the  lawful  rate,  of  interest,  is  not  usu. 
nous,  if  the  transaction  be  unconnected 
with  a  loan  between  UM  parties.     Per 
NELSON,  Ch.  J.     KetcHum  v.  Bmrhrr 
and  others,  j  .  \ 

6.  If  connected  with  a  loan,  the  trans. 
action  will  be  deemed  usurious,  unless 
the  excess  beyond  legal  interest  bo 
fairly  ascribablo   to   trouble  and  ex. 
pense  actually  and  bonafide  incurred 
in  and  about  the  business  of  the  loan. 
Per  NELSON,  Ch.  J.  id 

7.  In  such  cases,  it  is  in  general  a  qnsaiiun 
for  the  jury  whether  the  excess,  by 
whatever  name  the  parties  may  bare 
called  it,  was  really  taken  as  a  com- 
pensation for  trouble  and  expense  in- 
curred in  good  faith,  or  was  mere  usu- 
ry in  disguise.    Per  NELSON,  Ch.  J.  id 

8.  M.,  being  desirous  of  raising  money 
upon  a  note  at  four  months,  drawn  by 
himself  and  endorsed  for  his  accom- 
modation by  B.  and  L.,  authorized  a 
broker  to  buy  an  additional  name  or 
guaranty  for  the  purpose  of  getting  the 
note  discounted.    Application  was  ac- 
cordingly made  to  k.,  also  a  broker, 
who  endorsed  the  note  on  receiving  a 
commission  of  two  and  a  half  or  three 
per  cent,  and  it  was  then  discounted 
at  a  bank.    About  the  time  it  fell  due, 
M.  made.  another  note,  rmmsysjssliif 
in  amount,  which,  after  being  endors- 
ed, was  discounted  by  K.,  ana  the  nro. 
ceeds  applied  in  payment  of  UM  nrst. 
The  second  note  not  being  met  at  ma- 
turity, K.  brought  an  action  upon  it 
against    the    maker    and    endorsers, 
which  was  referred,  and  the  refsrse  re. 
ported  in  K.'s  faror.     Htld,  on  motion 
to  set  aside  the  report,  that  the  taking 
of  the  cosnaaiesinn  by  K.  d*l  aot  sen- 
der the  transaction  mar  a* 

and  the  motion  was  thsnfcs* 


712 


INDEX. 


9.  COWEN,  J.  dissented,  holding  that  the 
transaction  between  K.  and  M.,  in  re. 
spect  to  the  first  note,  was  not  a  sale 
in  any  sense,  but  amounted  to  a  usu- 
rious loan  of  K.'s  credit ;  and  the  note 
in  question  having  come  to  his  hands 
by  way  of  further  security,  or  exten- 
sion of  the  loan,  it  was  void.  id 

10.  The  case  of  Steele  v.  Whipple,  (21 
Wend.  103,)  commented  on  and  ex- 
plained, and  Kentv.  Lowen,  (1  Camp. 
177,)  overruled.  id 


11.  Various  other  English  and  American 
cases,   relating   to   indirect   usurious 
loans,  cited  and  and  reviewed.     Per 
NELSON,  Ch.  J.  and  COWEN,  J.          id 

12.  C.  covenanted  to  assign  to  a  bank, 
bonds  and  mortgages  on  real  estate  to 
the  amount  of  $13,000,  payable  in  five 
years,   with    interest    semi-annually, 
and  to  guaranty  the  payment  of  them ; 
in   consideration  whereof,   the  bank 
agreed  to  transfer  to  C.  certain  stock 
to  the  amount  of  $6500  at  its  nominal 
value,  but  which  was  then  twenty- 
five  per  cent,  below  par,  and  to  pay 
him  the  balance  in  money.     After- 
wards, the  bonds  and  mortgages  not 
having  been  assigned,  the  bank  trans- 
ferred the  stock  and  paid  the  money 
on  receiving  two  notes  for  $6500  each, 
agreeing  to  take  the  bonds  and  mort- 
gages in  payment,  if  delivered  before 
the  notes  became  due.     Held,  in  an 
action  upon  one  of  the  notes,  that  the 
transaction  was  nsurious  ;  and  a  ver- 
dict finding  it  otherwise  was  set  aside. 
Seymour  and  others,    ex'rs   <J-c.    v. 
Strong,  255 

13.  A  bond  and  mortgage  for  $3000, 
payable  one  year  from  date,  with  in- 
terest to  become  due  half  yearly,  and 
on  which  over  five   months   interest 
had  already  accrued,  were  assigned 
absolutely  by  the  holder  for  $2600, 
in  order  to  raise  money.     The  assign- 
ment stated  the  consideration  paid  by 
the  assignee  to  be  $3000,  and  con- 
tained a  covenant  that  thus  much 
was  due  and  owing  on  the  bond  and 
mortgage.    At  the  time  of  executing 
the  assignment,  the  assignor  also  exe- 
cuted to  the  assignee  a  bond,  with 
surety,  conditioned  that  the  mortgagor 
should  pay  the  $3000  together  with 
the  interest,  by  the  day  appointed  for 
that  purpose  in  the  securities  assigned 


On  a  bill  filed  by  the  assignor  to  set 
aside  the  assignment  and  have  the 
bond  of  guaranty  cancelled,  held,  that 
the  transaction  was,  on  its  face,  a 
mere  sale  of  a  chose  in  action,  uncon- 
nected with  a  loan,  and  therefore  not 
usurious  per  se.  Rapelye,  appellant, 
v.  Anderson,  respondent,  472 

14.  COWEN,  J.  and  RUGER,  senator,  dis- 
sented, being  of  opinion  that  the  trans- 
action was  in  effect  a  usurious  loan, 
and  that  the  complainant  was  there- 
fore entitled  to  the  relief  sought.       id 

15.  In  an  action  upon  the  bond  of  guar- 
anty, the  assignee's  recovery  would 
be  limited  to  the  actual  amount  paid 
for  the  bond  and  mortgage,  notwith- 
standing the  consideration  expressed 
in  the  assignment.      Per  FRANKLIN 
and  BOCKEE,  senators.  id 

16.  Various  cases  relating  to  usurious 
loans  made  under  color  of  a  sale  of 
goods,  choses  in  action  &c.  cited  and 
commented  on.    Per  COWEN,  J.     id 


17.  The  second   section  of  the  act  to 
prevent  usury  (Sess.   L.   of  '37,  p. 
487)  was  intended   to  give  the  defen- 
dant the  right  to  insist  on  a  personal 
examination  of  the  plaintiff  at  the 
trial ;  and  the  latter  ought  not  to  be 
allowed,  by  absenting  himself  from 
the  state,  to  compel  the  defendant  to 
resort  to  a  commission.     Per  COWEN, 
J.     Vermilyea  v.  Rogers,  567 

18.  Whether  a  commission  may  issue 
for    the    purpose  of   examining  the 
plaintiff,  in  such  case,  quere.  id 


19.  Where  the  plaintiff  was  temporarily 
absent  from  the  state,  so  that  he  could 
not  be  served  with  a  subpoena,  and 
neglected  to  attend  the  circuit  at 
which  the  cause  was  set  down  for 
trial,  notwithstanding  a  notice  to  his 
attorney  requiring  such  attendance ; 
held,  that  the  circuit  judge  might,  in 
his  discretion,  make  a  general  order 
postponing  the  trial  till  the  plaintiff 
should  appear,  especially  as  there  was 
reason  to  suspect  he  remained  absent 
with  a  view  of  evading  a  personal  ex- 
animation.  BRONSON,  J.  dissented,  id 

See  WITNESS,  7. 


EfDEX. 


713 


V 

VACATUR. 

Im  JpDOMtNTf  AND  ExIOUTDMrt,  10,11, 

17  to  19. 


VARIANCE. 

Stt  BILL  or  EXCEPTIONS,  3. 
INSURANCE,  3. 


VENDOR  AND  PURCHASER  OF 
LANDS. 

Set  ADVERSE  POSSESSION. 
Assi-MPsiT,  4. 
CONTRACT,  1. 
CORPORATION,  7  to  30. 
COVENANT,  10  to  16. 
DEED,  1,2. 
EVIDENCE,  19,20. 

JUDGMENTS  AND  EXECUTIONS,  17  to 

19. 


VENDOR  AND  VENDEE  OF 
CHATTELS. 

See  BAILMENT. 

CONTRACT,  6  to  8. 

DAMAGES. 

EVIDENCE,  1  to  7. 

EXECUTORS  AND  ADMIINBTRATORS, 

4  to  7. 

FRAUDULENT  SALF  OF  CHATTELS. 
JUDGMENTS  AND  EXECUTIONS,  2,  3. 


VENUE. 

1.  Where,   in   an   affidavit   to   change 
venue,  the   statement  of  merits   was 
thus — "  this  deponent  is  adtistd  by 
his  said  counsel  that  paid  defendants 
have  a  good  and  substantial  defence 
Ate.,  which  advice  this  deponent  be. 
lieves  to  be  true  :"  Held,  insufficient 
Brittan  and  another  v.  Peatiodt/  one 
another,  61 

2.  In   what  actions  the  venae  will  be 
changed.     Note  (a).  62 


3.  What  parties  may  m6vo,  and  whelh- 
er  all  should  join  in  the  upplicat-'on. 
Id.  6»,  63 

VOL.  IV. 


4.  In  what  rtato  of  the  <*OM  motion 
may  be  made,  and  within  what  Oni. 
Id.  « 


5.  Requisite*  of  affidavit  on  which  to 


more.    Id.  64  to  66 

6.  General  form  of  affidavit.     Id.      C€ 


7.  Staying  proceed inp  forth*  purpewo 
of  the  motion.    Id.  66 


8.  Form  of  order  to  stay  proceeding*. 
/.  67 


9.  Revoking  order  to  stay  proceedings. 
Id.  67 

10.  Form  of  order  of  revocation.  Id.  67 

11.  Notice  of  motion  to  change  venue. 
Id.  G7 

12.  Form  of  notice  of  motion.    Id.    68 

13.  Grounds  of  opposition  to  the  motion. 
Id.  68 

14.  Requisites  of  affidavit  to  oppose  mo- 
tion.    Id.  G9 

15.  General  form  of  affidavit.    Id.     63 


16.  Costs  of  the  motion.    Id. 


n 


17.  Subsequent  proceedings.     Id.       70 

18.  Where  a  motion  was  made  to  chang* 
the  venue  from  New-York  to  Living. 
rton  county,  npon  an  affidavit  of  ono 
hundred  and  sixteen  witnesses,  and  it 
appeared  ftom    the  opposing  paper* 
that  the  suit  was  for  a  conspiracy  in  ob- 
taining goods  by  false  pretences— that 
one  of  the  defendant*  had  declared  ho 
wanted   the   witnesses   to   prove   tbo 
good  character  of  his  co-defendant— 
and  that  the  plaintiff  had  fifteen  wit. 
nesses  residing  m  New-York,  w  here  th« 
transaction  occurred  for   which    tho 
suit  was  brought :  Held,  that  the  nix 
tkm  was  evidently  an  attempted  fraud 
upon  the  practc'c  of  the  court,  and 
should  therefore  be  denied,  with  rtn«4t, 
Wallace   and  another  v.   Bond    «i>4 
another,  ••*>-> 


19.  An  affidavit  to  change  vena*«tatai 
that  without  the  testimony  of  oadi 


INDEX, 


and  every  of  the  witnesses  the  defen- 
dant could  not  safely  proceed  to  the 
trial,  without  adding  the  words,  of 
this  cause ;  yet,  held  sufficient.  Por- 
ter v.  Mann,  540 


VERDICT. 

See  COSTS,  4,  5. 

SPECIAL  VKEDICT. 


VERIFYING  PLEA. 

See  PRACTICE,  28. 

VESSELS. 

See  MORTGAGE  OF  VESSELS. 

w 

WAIVER. 

See  ADVERSE  POSSESSION,  2. 

DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  8. 
EKROR,  1,2. 
WITNESS,  2,  3. 

WARRANT. 

See  COMMON  SCHOOLS,  2.  •»•""»? 

COURT  MARTIAL. 
DEBTORS,  ABSCONDING,  CONCEALED 

AND  NON-RESIDENT,  5  to  11. 
INJUNCTION,  3, 4. 

WARRANT  OF  ATTORNEY. 

See  JUDGMENTS   AND  EXECUTIONS, 
10,  11. 

WARRANTY. 

See  DAMAGES. 

WARRANTY,  COVENANT  OF. 
See  COVF.NANT,  11  to  16. 

WATER. 
Set  RIVERS  AND  CREEKS- 


1.  Where  a  testator  in  1825  executed  a 
will  devising  certain  real  estate  to  his 
son,   and   died  in   Io40 ;    held,  that 
though  the  eon  died  in  1833,  the  es- 
tate vested  in  his  children,  and  not 
in  the   heirs  at  law  of  the  testator. 
Bishop  and  others  v.  Bishop,          138 

2.  Otherwise,  if  the  testator  had  surviv- 
ed the  devisee,  and  died  before  the  re- 
vised statutes  took  effect.  id 

3.  Where  land  is  directed   by  a  will  to 
be   sold   and  converted  into  money 
though  far  a  particular  and  specified 
purpose,  and  not   absolutely  or  "  out 
and  out,"   the   estate   is  regarded  in 
equity,  to  the  extent  and  for  the  pur. 
pose    designated,  as  money,  and  not 
land.    Per  NELSON,  Ch.  J.     Bogert, 
appellant,  v.   Hertell  and  others,  re- 
spondents,  492 

4.  If  the  purpose  for  which  the  conver- 
sion was  directed  fail  altogether,  or  in 
part,  the  entire  estate  in  the  one  case, 
and  the  part  in  the  other,  is  regarded 
as  undisposed  of  by  the  will,  and  so 
goes  to  the  heir  at   law.     Per  NEL- 
SON, Ch.  J.  id 

5.  In  the  case  of  a  partial  failure,  how- 
ever, if  the  purposes  of  the  will  still  re- 
quire that  the  conversion  should  take 
place,  the  part  in  respect  to  which 
the  failure  has  occurred  goes  to.  the 
heir  as  money,  and  not  as  land.     Per 
NELSON,  Ch.  J.  id 


6.  After  a  sale  and  conversion,  no 
failure  of  the  purposes  of  the  trust 
having  occurred,  the  executors  take 
the  entire  proceeds  as  a  part  of  the 
personal  assets  of  the  estate.  Per 
NELSON,  Ch.  J.  and  BOCKEE,  senator. 

id 

1  Various  cases  relating  to  the  doctrine 
of  equitable  conversion,  cited  and 
commented  on.  Per  NELSON,  Ch.  J. 

id 


S.  Where  a  will  contains  a  power  to  sell 
land  for  the  purpose  of  distribution, 
of  paying  debts  &c.,  without  naming 
the  donee  of  the  power,  it  will  vest  in 
the  executor  by  implication.  Per 
NELSON,  Ch.  J.  id 

See  EXECUTORS  AND  ADMINISTRATORS,  4, 


INDEX. 


WITNESS. 


1.  A  person  attending  before  a  court  or 
officer  a  not  entitled  to  a  witness' 
privilege  from  arrest,  unite  he  attend 
at  a  witness ;  and  this,  though  he  be 
•worn  and  examined  after  the  arrest 
Cole  v.  SfCUUan,  59 

'<!.  The  privilege  of  an  attorney  or  coun- 
sellor from  arrest,  while  attending 
court,  may  be  waived  by  him.  id 

3.  Accordingly,  where  a  counsellor,  on 
being  served  with  a  capias  authorizing 
him  to  be  held  to  bail,  omitted  to  claim 
any  exemption,  but  rather  invited  the 
arrest,  telling  the  officer  to  prepare  a 
bail  bond,  which  he  afterwards  exe- 
cuted ;  held,  that  this  amounted  to  a 
waiver  of  the  privilege.  id 

4.  A  counsellor  is  not  privileged  from  ar- 
rest while  attending  before  an  exami- 
ner, master,  or  a  judge  out  of  court,  id 

5.  Before  a  witness'  competency  can  be 
deemed  to  have  been  restored  by  a  re- 
lease, something   more   than   a  con. 
structive  delivery  of  the  release — i.  e. 
a  delivery  to  a  third  person  for  the  use 
of  the  witness — must  be  shown.     It 
should  at  least  appear  that  he  knew  of 
the  release  at  the  time  of  giving  his 
testimony.    Seymour  and  others,  ex'rt. 
$c.  v.  Strong,  255 

C.  A  witness,  prima  facie  interested, 
having  been  examined  under  a  com- 
mission, it  was  shown  at  the  trial  that 
the  commission,  together  with  a  re. 
lease  of  the  witness'  interest,  were  en- 
closed to  the  commissioner  in  one 
wrapper,  accompanied  by  directions  to 


71/5 

deliver  the  release  to  the  witness  U. 
ton  swearinir  ban ;  and  that  the  ra. 
K*M  was  afterwards  annexed  to  the 
9fmUkm  and  returned  with  ft 
Held,  sufficient  evidence  of  the  detfe. 
ery  of  the  release  to  authorize  the  dn>- 
osttion  to  be  read.  ^ 

7.  Where,  in  an  action  upon  a  pronue- 
•ory  note  by  one  to  whom  it  had  becsj 
transferred,  the  payee  was  catted  to 
prove  that  it  was  given  upon  a  MB. 
rious  consideration ;  keld,  that  be  was 
not  bound  to  testify,  though  the  not* 
was  made  and  transferred  prior  to  the 
act  of  May  15th,    1-37.     Ktmp**U 
4-  Eggletton  v.  Burnt,  468 

8.  In  actions  ex  contracfu,  a  separate 
verdict  in  favor  of  one  of  several  de. 
fendants,  though  grounded  on  his  d*v 
charge  as  a  bankrupt,  will  not  render 
him  competent  to  testify  for  his  co-de- 
fendants.    Mill*  v.  Let  and  otktrt, 

549 

Set  BILLS  or  EXCHANGE  AMD  PROWS. 

soar  NOTES,  1,  2. 
CHAKCERT,  2  to  4. 

CoMMISmoN  TO  TAKE  TCVTUIOXT. 

COSTS,  13  to  15. 

EVIDENCE,  13  to  15. 

FRAUDULENT  SALE  or  CHATTELS. 

LIEN,  4  to  6. 

PRACTICE  AT  THE  TRIAL,  1. 

USURY,  1,2,  17  to  19. 

VENUE,  18. 


WRIT  OF  ERROR. 

See  COSTS,  9,  19. 

ERROR. 
PRACTICE,  4,  5. 


BWD  OF  Voiron  roxr». 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

405  Hilgard  Avenue,  Los  Angeles,  CA  90024-1388 

Return  this  material  to  the  library 

from  which  it  was  borrowed. 


